
, . . "*" 



66th Congress! 

1st Session J SENATE / Document 
. \ No. 156 

INTERNATIONAL LAW AND 
THE TREATY OF PEACE 

BEING A COMPARATIVE ANALYSIS OF THE COVE- 
NANT AND TREATY OF VERSAILLES OF JUNE 28, 
1919, WITH THE ARTICLES OF THE SETTLEMENT 
AND APPLICABLE PRINCIPLES OF THE LAW 
OF NATIONS-SET OUT IN PARALLEL COLUMNS 



By 

STERLING E. EDMUNDS, LL. D. 

Lecturer on International Law, St. Louis University Law School, and former 
Assistant in the Department of State 







PRESENTED BY MR. REED 
November 19, 1919.— Ordered to be printed 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

191S 






ft.' of •• 

DEC 24 1813 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 

By Sterling E. Edmunds, LL.D., 

Lecturer on International Law, St. Louis University Law School, 
and Former Assistant in the Department of State. 



Considering the terms of the treaty of Versailles, as they relate to the actual settlements, from the standpoint 
of international law, it may he affirmed that no modern treaty of peace has done this system such violence; 
certainly not the cynical treaty of Vienna of 1815. For that treaty, in spite of the wickedness of its settlements, 
left us some progressive principles of the utmost value, notably that of the freedom of international rivers. 
Further, its labors in behalf of the abolition of the slave trade were surely worthy of the world's approval. 

In the treaty of Versailles, however, it is difficult to find a single progressive principle established, while 
rule after rule of the law of nations, heretofore recognized as instituted for the protection of all states, is ignored 
or violated where it conflicts with the purposes of the respective allied and associated powers. 

The validity of title founded in conquest is not abolished, as it might have been, and as the world was led 
to believe it would be, embodied, as it was, in the preliminaries to negotiation. The recognition of the secret 
treaties, confirming the rights of conquest, stood in the way of this benign possibility. 

The plebiscite, designed to prevent the handing of peoples around like flocks of the field, was not established 
as a principle of the law of nations, as the world was also led to expect it would be. There is only a very restricted 
application of it in the terms, and with respect to some territories it is denied altogether. 

Neither is the right of option, designed for the protection of individuals or minorities, established. It is 
permitted in some instances of cession, but withheld altogether in others. 

As to the covenant of the league of nations, it is a reactionary institution rather than a progressive one 
in that it ignores the whole modern trend toward the establishment of international relations upon the founda- 
tions of law rather than upon compromise and expediency. The covenant of the league of nations looks to the 
establishment of superintendence over international relations by political as distinguished from legal methods. 
There is not a single reference to international law in the whole covenant that points to any definite plan what- 
ever for the progressive improvement and extension of that law. In neither the council of the league of nations 
nor in any body to function under it in the proposed settlement of disputes is there any provision tor the limita- 
tion of their actions within the settled principles of law. It is possible for the league of nations to take up and 
carry on the achievements of the last two decades, starting where The Hague conferences left off and looking 
to the progressive development of law and the substitution of judicial settlements for mere arbitration based 
on compromise, but such an intention is nowhere manifested in the covenant. In fact, there appears to be 
almost a complete abandonment of the lessons of the past. 

Not only does the treaty of Versailles fail to lend its great sanction to the establishment of progressive 
principles, but it sets aside, so far as future validity is concerned, many principles wrung only with the most 
laborious effort from a self-interested world. Thus 'the rules instituted for the protection of private property 
on land and in territorial waters, and even that protecting the private property of prisoners of war, are swept 
aside. The settled distinctions with respect to belligerent rights of destruction and those limiting the exercise 
of belligerent force within lawful bounds are confounded. The effect of the outbreak of war on treaties is thrown 
into greater confusion than ever by reason of inconsistent and contradictory action. 

In the stipulation for the trial and punishment of those German nationals found guilty of violations of the 
laws of civilized warfare a wholesome step forward has been taken, calculated to sustain these laws in the 
times to come and to promote their observance. 

It was not necessary to the placing of the severest burdens upon Germany to have declared that Germany 
must accept the responsibility for causing all loss and damage to which the allied and associated Governments 
and their nations have been subjected; for, as pointed out in the discussion of the article, the laws of war plainly 
distinguish between lawful and unlawful loss and damage. The amount of unlawful loss and damage for which 
Germany is responsible, in view of her utterly barbarous methods of carrying on war, probably far exceeds 
any sum which may ultimately be received. To have adhered to these laws in assessing reparation — as it is 
proposed to invoke the law in the infliction of punishments — would have done incalculable service toward the 
effective establishment of these restraints upon warlike violence. 

In the failure of the allied and associated Governments to take this course they have established a precedent 
which future belligerents will not fail to act upon in freeing themselves from heretofore fixed limitations upon 
the use of force. It must be borne in mind that one of the sources of international law is just such a great 
international congress as that assembled at Versailles; it is these gatherings mainly that make and unmake its 
principles. Such congresses are, therefore, under a very solemn responsibility to the future of the world. 

3 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



In the preface to Prof. William E. Hall's scholarly treatise on international law, which has run through 
many editions, is the following remarkable prophecy, penned in 1889: 

Looking back over the last couple of centuries we see international law at the close of each fifty years in a more solid position than 
that which it occupied at the beginning of the period. Progressively it has taken firmer hold, it has extended its sphere of operation, 
it has ceased to trouble itself about trivial formalities, it has more and more dared to grapple in detail with the fundamental facts in the 
relations of States. The area within which it reigns beyond dispute has in that time been infinitely enlarged, and it has been greatly 
enlarged within the memory of living men. But it would be idle to pretend that this progress has gone on without check. In times when 
wars have been both long and bitter, in moments of revolutionary passion, on occasions when temptation and opportunity of selfishness 
on the part of neutrals have been great, men have fallen back into disregard of law and even into true lawlessness. And it would be idle 
also to pretend that Europe is not now in great likelihood moving toward a time at which the strength of international law will be too hardly 
tried. Probably in the next great war the questions which have accumulated during the last half century and more, will all be given 
their answers at once. Some hates, moreover, will crave for satisfaction; much envy and greed will be at work; but above all, and at 
the bottom of all, there will be the hard sense of necessity. Whole nations will be in the field; the commerce of the weld may be on the 
sea to win or lose; national existences will be at stake; men will be tempted to do anything which will shorten hostilities and tend to a 
decisive issue. Conduct in the next great war will certainly be hard; it is very doubtful if it will be scrupulous, whether on the part 
of belligerents or neutrals; and most likely the next war will be great. But there can be very little doubt that if the next war is unscru- 
pulously waged, it also will be followed by a reaction toward increased stringency of law. In a community, as in an individual, passionate 
excess is followed by a reaction of lassitude and to some extent of conscience. On the whole the collective seems to exert itself in this 
way more surely than the individual conscience; and in things within the scope of international law, conscience, if it works less impul- 
sively, can at least work more freely than in home affairs. Continuing temptation ceases with the war. At any rate it is a matter of 
experience that times, in which international law has been seriously disregarded, have been followed by periods in which the European 
conscience has done penance by putting itself under straighter obligations than those which it before acknowledged. There is no reason 
to suppose that things will be otherwise in the future. I therefore look forward with much misgiving to the manner in which the next 
great war will be waged, but with no misgiving at all as to the character of the rules which will be acknowledged ten years after its termi- 
nation, by comparison with the rules now considered to exist. 

Only the first half of this prophecy has been fulfilled; in the pursuit of material and illogical objects by the allied and associated 
Governments the opportunity to realize the latter half has been postponed to a later time. 

The sweeping aside of all restraints by the victors must cause something of a shock to those who read the articles of the treaty in the 
belief that the character of imposed peace has changed. 

It is to be hoped, however, that with the cooling of passions and the coming of sober second thought to the world the influence of the 
great international jurists of the United States, of France, of Italy, and of Great Britain will reassert itself toward the readjustment, restate- 
ment, and restoration of the principles of international law. as the only foundation upon which the relations of nations can rest in definite 
security. 

The following analysis is, of necessity, a mere outline, iu which the articles of the treaty are paraphrased in the interest of brevity; 
only a work of volumes" would permit of a thorough discussion of the multifarious phases of the settlement and their relation to and effect 
upon the law of nations. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 



PART I. THE COVENANT OF THE LEAGUE OF NATIONS. 



The high contracting parties, 

In order to promote international cooperation and 
to achieve international cooperation and achieve in- 
ternational peace and security: 

By the acceptance of obligations not to resort to 
war; 

By the prescription of open, just, and honorable 
relations between nations; 

By the firm establishment of the understandings of 
international law as the actual rule of conduct among 
governments, and 



By the maintenance of justice and a scrupulous 
respect for all treaty obligations in the dealings of 
organized peoples with one another agree to this cove- 
nant of this league of nations. 

Article 1. Members of the league shall he those sig- 
natories named in the annex, and also such of those 
named (as invited) as shall accede without reserva- 
tion by a declaration deposited with the secretariat 
within two months of the coming into force of the 
treaty. 



Any fully self-governing State, dominion, or colony 
may become a member if its admission is agreed to 
by two-thirds of the assembly, provided that it shall 
give effective guaranties of its sincere intention to 
observe its international obligations and shall accept 
such regulations as may be prescribed by the league 
as to its military and naval forces and armaments. 



Not only does the covenant fail to provide any 
means for the "firm establishment of the understand- 
ings of international law" but the treaty itself appears 
to discard many vital principles of the customary as 
well as of the conventional law of nations. (See com- 
ment opposite arts. 282-287.) 



Thirty-two States, dominions, and colonies men- 
tioned in the annex as signatories are declared mem- 
bers (though China, one of the States mentioned, 
refused to sign) and 13 others are named as those 
invited to become members, making 45 in all. 

In 1910 Oppenheim, the eminent English successor 
to Westlake as Whewell professor at Cambridge, as- 
serted (vol. 1, Int. Law, pp. 162-164) that there were 
then in Europe 74 States possessing international per- 
sonality, and therefore members of the family of na- 
tions. He included the 24 German States and free 
towns. He cites 21 States in the Americas, 1 in Africa, 
and 1 m Asia. As to China, Siam, Afghanistan, and 
Thibet, he denied to them the status, asserting that 
they possess international personality only for some 
purpose. His list embraced 97. None of the British 
dominions or colonies is mentioned as possessing the 
essential attributes of an international person quali- 
fied for association in the family of nations. (See W. 
Allison Phillips, The Peace Settlements, 1815 and 1919. 
Edinburgh Review, July, 1919, as to exclusion of Ger- 
man States from the holy alliance.) 

This paragraph confounds all previously accepted 
principles with respect to international personality and 
sovereignty. If it connotes the assumption ipso facto 
by such dominion or colony of a bona fide free and 
independent status, there is nothing inconsistent, but 
then it would cease to be a dominion or colony. Thus 
the British Empire would be broken up. 

Half and part sovereign States, says Oppenheim 
(vol. 1, pp. 529-530), may be parties to international 
negotiation, but so-called colonial States, as the Do- 
minion of Canada, can never be parties to international 
negotiation. Thus viewed from the standpoint of the 
law of nations, the Dominion of Canada, the Common- 
wealth of Australia, New Zealand, and the Union of 
South Africa are British territory. (Ibid., vol. 1, p. 
231.) 

No genuine league of nations can be founded upon 
such basic inequalities. These inequalities appear not 
only in the organi" structure from the outset but they 
appear with respect to the treatment of subsequently 
admitted members. 

5 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 



Any member may, after two years' notice of its 
intention so to do, withdraw from the league, provided 
that all its international obligations and all its obli- 
gations under this covenant shall have been fulfilled 
at the time of withdrawal 



Article 2. The action of the league shall be effected 
through the instrumentality of an assembly and of a 
council, with a permanent secretariat. 

Article 3. The assembly shall consist of representa- 
tives of members of the league. It shall meet at 
stated intervals and from time to time as occasion 
may require, and at its meetings may deal with any 
matter within the sphere of action of the league or 
affecting the peace of the world. At meetings of the 
assembly each member of the league shall have one 
vote and not more than three representatives. 

Article 4. The council shall consist of representa- 
tives of the principal allied and associated powers (the 
United States, Great Britain, Italy, France, and 
Japan) together with four other members to be selected 
by the assembly from time to time in its discretion. 
Belgium, Brazil, Spain, and Greece are named provi- 
sional members. 

With the approval of a majority of the assembly, 
the council may name additional members whose 
representatives shall have fixed places in the council. 

The council shall meet from time to time as occasion 
may require and at least once a year, and it may deal 
with any matter within the sphere of action of the 
league or affecting the peace of the world. 

Any member not represented on the council shall 
be invited to send a representative to sit as a member 
at any meeting during the consideration of matters 
specially affecting the interests of such member. 

At meetings of the council each member repre- 
sented shall have one vote and not more than one 
representative. 

Article 5. — Except where otherwise provided de- 
cisions of the assembly and the council shall require 
agreement of all members represented at the meeting. 

Matters of procedure, including appointment of 
committees to investigate particular matters, may be 
decided by a majority present. 

The first meeting of the assembly and the first 
meeting of the council shall be summoned by the 
President of the United States. 

Article 6. The permanent secretariat shall be estab- 
lished at the seat of the league. The secretariat shall 
comprise a secretary general and such other secretaries 
and staff as may be required. 

The first secretary general shall be the person named 
in the annex; thereafter ho shall be appointed by the 
council with the approval of a majority of the assembly. 



THE LAW. 

The effect of notice of intended withdrawal would 
be immediately to transfer to the league the power of 
inquiry into and decision upon the whole body of in- 
ternational relations of the notifying State. Nor does 
it appear that time would bar any circumstance. 

In a particular case a State may of its own free will 
submit to an outside authority for decision the ques- 
tion of its fulfillment or nonfulfillment of certain obli- 
gations without derogating in any way from its sov- 
ereignty, but to transfer the right of final decision 
over the whole of its foreign relations is to yield the 
very essence of external sovereignty. Such State 
would occupy the position of ward to the outside 
authority. (See 1 Halleck, Ch. Ill, sec. 1 ; Blumtschli, 
sec. 64; "Vattel, ch. 1; Manning, p. 93; Hall, sec. 1; 1 
Westlake, ch. 3.) 



It will be observed that the assembly, which i3 a 
representative body, in principle at least, is not re- 
quired to meet within any definite period as is the 
council. (Infra, art. 4.) Although apparently clothed 
with concurrent power, it is in vital respects subordi- 
nate to the smaller council. The basis of legal equality 
in any league of nations necessarily requires equality 
in voting. (See Scott, The Hague Peace Conferences, 
vol. 1, p. 37.) 

It will be noted that the principle of equality disap- 
pears at this point, the five great powers constituting 
themselves an indefeasible majority. Yet every at- 
tempt at organizing a league of nations must start 
from and keep intact the independence and equality of 
all civilized States. (Oppenheim (1919), The League 
of Nations, p. 33.) 

The enlargement of the council can take place only 
by unanimous consent of the council, with the approval 
of a majority of the assembly. Self-interest will al- 
ways adjust and readjust the balance in the council. 



Although a State whose affairs are under consider- 
ation by the council may have a representative there- 
on, the rule of unanimity excludes the vote of this 
added representative. (Infra, art. 5.) Such repre- 
sentative is therefore not an equal in fact. 

While there is equality in the vote of the council, 
the principle is nullified by inequality of representa- 
tion. 

That is to say, there must be agreement as to such 
representatives present. 



•This would constitute the President of the United 
States the presiding officer of both bodies temporarily, 
at least. 

As to the possible magnitude of the personnel, see 
infra comment opposite article 282. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

Secretaries and staff shall be appointed by the secre- 
tary general with the approval of the council. 

The secretary general shall act in that capacity at 
all meetings of the assembly and of the council. 

The expenses of the secretariat shall be borne by 
members in accordance with the apportionment of 
expenses of the International Bureau of the Universal 
Postal Union. 

Article 7. The seat of the league is established at 
Geneva. The council may decide at any time to 
establish the seat elsewhere. 

All positions under or in connection with the league, 
including the secretariat, shall be open equally to men 
and women. 

Representatives of members of the league and 
officials of the league when engaged on the business 
of the league shall enjoy diplomatic privileges and 
immunities. 



THE LAW. 



The buildings and other property occupied by tho 
league or its officials or by representatives attending 
its meetings shall be inviolable. 

Article 8. The members of the league recognize that 
the maintenance of peace requires the reduction of 
national armaments to the lowest point consistent 
with national safety and the enforcement by common 
motion of international obligations. 

The council, taking into account the geographical 
situation and circumstances of each State, shall for- 
mulate plans for such reduction for consideration and 
action of the several governments. 

Such plans shall be subject to reconsideration and 
revision at least every 10 years. 

After these plans shall have been adopted by the 
several governments the limits of armaments fixed 
therein shall not be exceeded without the concurrence 
of the council. 



Diplomatic privileges and immunities include extra- 
territoriality, that is, immunity from local law, civil 
and criminal in foreign countries, such immunities 
extending to the agent's residence and to those in his 
suite. Owing to the inviolability attaching by the 
law of nations to the person of a diplomatic agent, a 
crime committed against him is punished with excep- 
tional severity by the laws of all States. (U. S. v. 
Hand, 2 Wash., 435.) 

The diplomatic immunities extended to all officials 
of the league must be considered as deriving from the 
respect due to the sovereignty of the league as a dis- 
tinct political entity, as the immunities of an ambassa- 
dor now from the respect due to the person of the 
sovereign whom he represents. 

Yet article 7 appears to extend the principle far 
beyond its application, even in the case of ambassa- 
dors, in clothing these officials with the status ap- 
parently anywhere "when engaged on the business of 
the league." Diplomatic immunities do not attach 
under the law of nations to ambassadors passing 
through third countries. They can claim no more 
than courteous treatment. (1 Westlake, pp. 273-275; 
1 Oppenheim, pp. 469-470; 1 Twiss., sec. 222; 1 Whar- 
ton, sec. 97; 4 Moore, sec. 643.) 

By the treaty of Berlin, 187S, and the treaty of 
London, 1883, instituting the Danube commission, 
the principle of inviolability was recognized as be- 
tween the signatories as attaching to the respective 
representatives, their archives, etc. But it was not 
contemplated as of universal application, as in the 
present instance, where league officials will be sent 
into the territories of nonmembers. 



The deduction is a fair one that "the geographical 
situation and circumstances" to be taken into account 
in reduction of armaments create an exception in 
favor of the great powers, whose far-flung empires 
may be thougnt to require large military and naval 
establishments. And the great powers, constituting a 
dominant force in the council, will formulate plans 
for themselves as well as for other States. 

The hegemony of the great powers in the league is 
silently recognized throughout the covenant. Yet 
historically a great power of to-day is not necessarily 
a great power of to-morrow. Spain, Portugal, and 
Sweden were great powers in 1815. Germany, Austria- 
Hungary, and Russia were great powers in 1914. 

And, it may be asked, who will keep in order those 
who are to keep the world in order? 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



THE TREATY. 

Members agree that the manufacture by private 
enterprise of munitions of war is open to grave ob- 
jections. The council shall advise how the evil effects 
can be prevented. 

Members undertake to interchange full and frank 
information as to the scale of their armament, their 
programs, and of their industries adaptable to warlike 
purposes. 

Article 9. A permanent commission shall be con- 
stituted to advise the council on the execution of the 
provisions of articles 1 and 8, relating to military and 
naval questions. 

Article 10. Members of the league undertake to 
respect and preserve as against external aggression the 
territorial integrity and existing political independence 
of all members of the league. In case of any such 
aggression or in case of any threat or danger of such 
aggression, the council shall advise upon the means 
by which this obligation shall be fulfilled. 



THE LAW. 



This would undoubtedly be a military commission 
whose functions would include superintending dis- 
armament of States newly admitted, as well as direct- 
ing the forces necessary to vindicate international 
obligations. 

This article embraces two distinct obligations in the 
first sentence, viz: "To respect" the territorial in- 
tegrity and existing political independence of member 
States, and to "preserve" the same as against external 
aggression. 

A. State undertaking to respect the territorial in- 
tegrity of another contracts to refrain from doing any- 
thing that shall in any way impair or impeach that 
territorial integrity, including its possessions, de- 
pendencies, colonies, protectorates, leased territories, 
spheres of influence, and hinterlands. All of these 
terms express degrees of territorial rights. (1 West- 
lake, ch. 6.) 

Under existing principles of the law of nations, 
States are under a general duty to respect the territory 
and independence of all other States. This duty con- 
notes the right of all States to complete immunity 
from interference by others. But there are excep- 
tions to this general rule recognized by the law. A 
State may lawfully decline to respect the territory 
and independence of another (1) in self-defense, (2) 
in accordance with treaty stipulations, (3) on grounds 
of humanity, and (4) in behalf of an oppressed popu- 
lation. (Davis, 4 ed., p. 104; Woolsey, sec. 43; 
Wheaton, sec. 36; Snow, p. 57; Hall, sec. 88; Law- 
rence, sees. 74-89; 1 Moore, p. 73.) 

The acceptance of the obligation "to respect" the 
territorial integrity and existing political independ- 
ence of member States means, therefore, a mutual en- 
gagement not to interfere on grounds of humanity or 
to assist an oppressed people within the territorial 
limits of member States. This obligation would prob- 
ably forbid extending a recognition of belligerency to 
revolting peoples within the territories of member 
States. 

The second obligation in the first sentence of article 
10 is that to preserve as against external aggression 
the territorial integrity and existing political inde- 
pendence of member States; so that there is not only 
the duty to abstain from giving any recognition or 
assistance to a revolting portion of a member State, 
but there exists the duty to aid in putting down such 
revolt should some other State assist the revolting 
portion. 

It is plainly a renewal of the proposition of the holy 
allies at the congress of Aix-la-Cnapelle, in 1818, to 
stereotype the State of possession, which was promptly 
rejected by Lord Castlereagh as impossible of achieve- 
ment until existing wrongs had been righted. (Alli- 
son's Life of Castlereagh, vol. 3, p. 66.) 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

Article 11. Any war or threat of war, whether im- 
mediately affecting members or not, is hereby declared 
a matter of concern of the league, and the league shall 
take any action deemed wise and effectual to safeguard 
the peace of nations. In case any such emergency 
should arise the secretary general shall on the request 
of any member forthwith summon a meeting of the 
council. 



It is the friendly right of each member to bring to 
the attention of the assembly or council any circum- 
stance whatever affecting international relations which 
threatens to disturb international peace or good under- 
standing. 



Article 12. Members Agree that if there should arise 
between them any dispute likely to lead to a rupture, 
they will submit the matter either to arbitration or to 
inquiry by the council, and they agree in no case to 
resort to war until three months alter the award by 
arbitrators or the report by the council. In any case 
the award by arbitrators shall he made within a reason- 
able time and the report of the council shall be made 
within six months after submission. 



Article 13. Members agree that whenever a dispute 
arises between them which they recognize as suitable 
for submission to arbitration and which can not be 
satisfactorily settled by diplomacy, they will submit 
the whole subject matter to arbitration. Disputes as 
to interpretation of treaties, as to questions of inter- 
national law, as to the existence of any fact which if 
established would constitute a breach of international 
obligation or as to the extent and nature of reparation 
to be made for such breach are declared to be suitable 
for arbitration. For the consideration of any such 
dispute the court of arbitration to which such case is 
referred shall be the court agreed on or stipulated in 
any convention between the parties. Members agree 
to carry out the award in good faith and not to resort 
to war against a member complying therewith. In 
the event of failure to carry out such award the 
council shall propose what steps should be taken to 
give effect thereto. 



THE LAW. 

What, it is pertinent to ask, constitutes a threat of 
war. The extent and variety of acts and situations 
embodying a threat of war defy enumeration. It is 
impossible even to catalogue acts and causes of war. 
One instance of a threat of war, in that it is a hostile 
act, may be cited: namely, any premature recognition 
of belligerency or of independence extended to a 
people struggling to be free. (Hall, pp. 39-42; 
Woolsey, sec, 180; Davis, 4th ed., pp. 277-278.) 

The term "threat of war" is absolutely undefined 
in the terminology of the law of nations. It may be 
construed to embrace any degree of friction in inter- 
national negotiation and authorize intervention by the 
league. 

It is presumed that the right of the assembly or 
council to obtrude itself into the ordinary diplomatic 
negotiations between States would not be needlessly 
exercised, yet the right is apparently contemplated if 
the negotiations do not move smoothly. The posses- 
sion of the untrammeled right of negotiation is the test 
of independence. (Manning, pp. 93-100: Westlake, 
Cbrp. VII; 1 Halleek, Ch. IV., sec. 1.) 

The obligation embodied in this article has been 
assumed generally by the civilized States of the world 
in bilateral treaties; and since 1S99 the permanent 
court of arbitration at The Hague has been success- 
fully occupied with a great variety of disputes. It is 
true that in a great majority of these bilateral treaties, 
"questions of honor and vital interest," that is, politi- 
cal que-tions, are excepted and reserved. There are 
certain political questions that are admittedly not 
arbitrable, as, for example, with us, one involving the 
validity of the Monroe doctrine. 

The principle of delay has been similarly embodied 
in bilateral treaties, providing for commissions of 
inquiry in place of reference to arbitration, though it 
has not been extensively applied as yet, except by the 
United States in the so-called Bryan treaties of 
1913-14. 

This article puts "teeth" in the conventions of 1899 
and 1907 establishing the permanent court of arbitra- 
tion at The Hague. This court has heard and deter- 
mined many grave controversies, but its determina- 
tions have, been founded largely upon compromise and 
expediency rather than upon the application of the 
principles of law. It was due to an existing sense of 
the inadequacy of this court as a means for building 
up a body 'of legal decisions that the American delega- 
tion to The Hague conference of 1907 was able to bring 
about the adoption of a draft convention for the insti- 
tution of a court of arbitral justice. The matter of 
representation alone prevented it from being put into 
immediate operation, a difficulty easy of solution 
to-day. 

The convention establishing the permanent court of 
arbitration appears to be the only one of the dozen or 
more of beneficent conventions signed at The Hague 
in 1907 that is recognized by the principal allied and 
associated powers as possessing any binding force or as 
worthy of survival. (See art. 287.) There appears to 
be a distinct break with the past 20 years' develop- 
ment of law and judicial processes as the preeminently 
desirable means toward the establishment of peace 
and an espousal of the doctrine of force. 



10 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

Article 14. Council shall formulate and submit to 
members of the league for adoption plans for a per- 
manent court of international justice. 

Article 15. Members agree that any dispute likely 
to lead to a rupture, not submitted in accordance 
with article 13 will be submitted to the council. Any 
party may effect submission by giving notice to the 
secretary general. The parties will communicate to 
the secretary general statements of their case with all 
relevant facts and papers, and the council may forth- 
with direct the publication thereof. 

The council will endeavor to effect a settlement, 
and if successful a statement shall be made public 
giving the facts and explanations. If the dispute is 
not settled the council, either unanimously or by 
majority vote shall publish a report and recommenda- 
tions. Any member of the league or the council may 
do likewise. 

If the report of the council is unanimously agreed 
to by members other than the representatives of 
one or more parties to the dispute, members will 
not go to war with any party complying with the 
recommendation. 

If the council fails to reach a report unanimously 
agreed to by members other than those in dispute, 
members reserve the right to take such action as they 
consider necessary for the maintenance of right and 
justice. 

If the dispute between the parties is claimed by 
one of them, and is found by the council, to arise 
out of a matter which by international law is solely 
within the domestic jurisdiction of that party, the 
council shall so report and make no recommendations. 



The council may in any case refer the question to the 
assembly, and it shall be referred to the assembly at 
the request of either party if such request be made 
within fourteen days after the submission of the dis- 
pute to the council. The assembly shall have all the 
powers of the council conferred in this article and in 
article 12, provided that a report made by the assem- 
bly be concurred in by members in the council and a 
majority of other members of the league other than 
the parties to the dispute. 

Article 16. Should any member resort to war in dis- 
regard of its covenants under articles 12, 13, and 15, it 
shall ipso facto be deemed to have committed an act 
of war against all other members of the league, which 
hereby undertake to subject it to the severance of all 



THE LAW. 

The convention referred to (supra, opposite art. 
13) is ready at hand, having been accepted by all the 
civilized States of the world. (See Scott, The Hague 
Conferences.) 

This article attempts to deal with disputes other 
than those known as "justiciable," dealt with in 
article 13. It is realized that some of these questions 
are beyond amicable solution. They are outside the 
realm of law and no principle of law or possibility 
of compromise can give hope of settlement. In such 
circumstances the league apparently sanctions a resort 
to war, after conciliation through the medium of the 
council has failed. The principles embodied in articles 
12, 13, and 15 are sound; the objection lies in the 
methods of their application. 

What provision is made, it may be asked, for cases 
of self-defense against sudden attack, as, for example 
a border raid. Must the State assailed submit pas- 
sively until the council has deliberated upon the 
question of "external aggression" or upon concilia- 
tion? The right of self-defense appears nowhere to 
be recognized in the sense that it has heretofore 
existed. (Hershey, 144-146, and notes.) 



It will be observed that as to whether or not a 
dispute arises out of a matter "which by international 
law is solely within domestic jurisdiction" is for the 
coiincil to find. There is a great variety of tilings a 
State may do in pursuance of its territorial supremacy, 
or domestic jurisdiction, which have international 
effect, and which may or may not infringe the rights 
of other States. Thus all persons, including aliens, 
within the territorial limits of a State are subject to 
the jurisdiction of that State, yet the State to which 
the alien owes allegiance may rightfully protect him 
abroad and compel a standard of treatment recog- 
nized by international law. (See Borchard, Diplo- 
matic Protection, etc.) So all exercises of domestic 
jurisdiction having international effect may be held 
to involve international concern. Knowing that "it 
is the duty of a good judge to extend his jurisdiction" 
it is conceivable that much exercise of domestic 
jurisdiction having international effect might ulti- 
mately pass under the control of the council in the 
application of this article. 

The apparent concurrent power of the assembly 
will be seen by this article to have disappeared, re- 
quiring the concurrence of the council to effectuate 
its action, thus leaving the council the preponder- 
antly powerful authority in the scheme. 



It is for the council (or the assembly with the con- 
sent of the council under art. 15) to decide when the 
contingency arises under which the duty of invoking 
and applying measures of commercial warfare falls 
upon members. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



11 



THE TREATY. 

trade or financial relations, the prohibition of all inter- 
course between their nationals and the nationals of the 
covenant-breaking State and the nationals of any 
other State. 

It shall be the duty of the council in such case to 
recommend to the several Governments concerned 
what effective military, naval, or air force the members 
shall severally contribute to the armed forces to be 
used to protect the covenants of the league of nations. 

Members of the league agree, further, mutually to 
support one another in financial and economic meas- 
ures in order to minimize the loss and inconvenience 
resulting, and that they will afford passage of troops 
through their territories. 



Any member of the league which has violated any 
covenant may be declared no lorger a member by 
unanimous vote of the council (excluding the vote of 
the member in disfavor). 

Article 17. This article extends the force of articles 
12 to 16, inclusive, to nonmembers of the league, who 
shall be invited to accept the obligations of member- 
ship for the purpose of the dispute. 

Upon such invitation the council shall immediately 
institute an inquiry. 



If both parties to the dispute be nonmembers and 
decline to accept the obligations of membership, the 
council may take such measures and make such rec- 
ommendations as will prevent hostilities and result in 
settlement. 



Article 18. Everv treaty or international engage- 
ment entered into hereafter by any member shdl he 
forthwith registered with the secretariat and pub- 
lished. No such treaty shall be binding until so reg- 
istered. 

Article 19. The assembly may from time to time 
advise the reconsideration of treaties which have be- 
come inapplicable. 

Article 20. Members severally agree that the cove- 
nant abrogates all obligations and understandings 
inter se which are inconsistent with the terms thereof 
and that they will not hereafter enter into inconsistent 
engagements. Any member bound by inconsistent 
obligations shall take immediate steps to procure re- 
lease therefrom. 



THE LAW. 

The term "resort to war" must be held to include 
defensive and offensive warlike violence as well as war 
legally declared and war in its material sense. (The 
Three Friends (1896), 166 U. S.) The obligations 
under this paragraph are clear and definite. 

The duty of commercial boycott appears to arise 
ipso facto with a determination by the council as to a 
"resort to war"; the duty to contribute armed forces 
appeai-s to rest on a decision of the league ad refer- 
endum. 

Whether or not a member contributes to the armed 
forces he shall contribute his share toward the finan- 
cial burdens assumed by those States employing their 
forces against the recalcitrant State, and become a 
passive ally at least to the extent of permitting the 
passage of troops across his territory. Such assist- 
ance constitutes war quite as fully as though troops 
were furnished. 



This paragraph clothes the council with jurisdiction 
over all matters affecting or held to affect international 
relations arising in nonmember States, with or with- 
out the approval of such nonmembers. It necessarily 
involves a denial of the heretofore accepted principles 
of the equality and independence of States. 

There is no limit to the measures that may be taken. 

On the whole, this article reduces those nonmembers 
desiring to retain sovereignty and independence to the 
same condition of wardship to the council as is pro- 
duced in the cases of members other than the principal 
allied and associated powers. 

The power to be assumed by the council appears to 
be that of unlimited intervention. Consent to the 
exercise of the power may be inferred as to signatories, 
but it can not be inferred as to nonsignatory or non- 
member States. The principle of independence would 
vanish from the law of nations under this article. 



The execution of this article is left to the conscience 
of the members; there is no provision for scrutiny into 
existing treaties of alliance and other conventions 
serving special aims, nor is there any criterion by 
which inconsistency may be determmed to exist. 
Thus the Anglo-Japanese alliance with respect to the 
special interests of those two States in Asia announces 
as an object the preservation of peace. It may be 
contended by the high contracting parties that on 
incompatibility exists; that it is in fact a "regional 
understanding" for securing the maintenance of peace. 
(See art. 21.) 

It is clear that different standards will be applied as 
between the principal allied and associated powers, 
on the one hand, and the small States on the other. 



12 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 



Article 21. Nothing in this covenant shall be deemed 
to affect the validity of international engagements, 
such as treaties of arbitration, or regional under- 
standings like the Monroe doctrine, for securing the 
maintenance of peace. 



Article 22. To those colonies and territories which 
have ceased to be under the sovereignty of the States 
which formerly governed them and which are inhabited 
by peoples not yet able to stand by themselves under 
the strenuous conditions of the modern world, there 
shall be applied the principle that the well-being and 
development of such peoples form a sacred trust of 
civilization and that securities for the performance of 
this trust should be embodied in this covenant. The 
best method of effecting this purpose is to intrust the 
tutelage of such peoples to advanced nations, as 
mandatories on behalf of the league. 

The character of the mandate must differ according 
to the stage of development of the people, the geo- 
graphical situation of the territory, its economic condi- 
tions, and other similar circumstances. 

Certain communities of the former Turkish Empire 
have reached a stage of development where their inde- 
pendence can be provisionally recognized, subject to 
the rendering of administrative advice and assistance 
by a mandatory. 



THE LAW. 

In the first part of this sentence all bilateral and 
multilateral treaties of arbitration are recognized as 
possessing continuing binding force. (See comment 
opposite art. 282-287.) 

As to the Monroe doctrine, it is not a regional un- 
derstanding; it is a mere unilateral declaration of 
State policy which has never receh r ed the recognition 
of any State as a rule of international law. It is, 
however, founded upon the right of self-preservation, 
which right is recognized by international law. (1 
Phillimore, sees. 210-220; 1 Twiss, sees. 106, 108-110; 
1 Halleck, Ch. IV, sees. 1-7, 18-27; Wheaton, sec. 60; 
Woolsey, sees. 17, 37; Davis, p. 93.) 

The term "regional understanding" is new in dip- 
lomatic language and has no history from which a 
definition may be drawn. It would appear, how- 
ever, to embrace a vast field of bilateral and multi- 
lateral treaties, conventions, and agreements relating 
to geographical areas and to the various degrees of 
existing territorial rights. The aggression of all power- 
ful States upon weaker ones, establishing protecto- 
rates, spheres of influence, spheres of interest and 
hinterlands, and exacting territory on lease, has been 
clothed invariably in language emphasizing the anx- 
iety of the aggressor for the maintenance of peace 
and the extension of protection. Such is the language 
of diplomacy, and, if accepted literally, all such agree- 
ments, founded upon force and fraud alone, are vali- 
dated. (See 1 Westlake, 121-142, for discussion of 
minor territorial rights.) 

This article evidences merely a continuation of the 
stereotyping process, seeking to bind down mighty 
natural forces that no human power can hold in 
check. As a pertinent illustration of regional under- 
standing, the Lansing-Ishii agreement of 1917 recog- 
nizes the "special interests" of Japan in China on the 
ground of contiguity; if the principle of equality has 
any validity whatever, China is equally entitled to a 
recognition of special interests in Japan upon the 
same ground. 

These understandings are not like the Monroe doc- 
trine, which harbors no aggressive designs, but from 
the materialistic European and Asiatic points of view 
the Monroe doctrine is in the same category. 

These peoples are perfectly able to stand alone if 

Crotected against despoilment and degradation at the 
ands of aggressive powerful States. 



After the laudable sentiments of the preceding para- 
graphs this is intended to prepare the reader for certain 
exceptions, made necessary in view of the existence of 
definite obligations in secret treaties and arrangements 
for the distribution of the spoils of war. 

This refers to Asia Minor and conforms to the age- 
long British policy of dominating the road to India. 
The principal community referred to is Hedjaz, which 
is thus created as a vassal State of Great Britain. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



13 



THE TREATY. 

Other peoples, especially those in Africa, must be 
placed under a mandatory responsible for adminis- 
tration, order, morals, the prohibition of the slave- 
trade and liquor traffic, and the prevention of military 
organization among the natives. 

There are territories, such as Southwest Africa and 
certain of the South Pacific islands, which, owing to 
sparseness of population, remoteness from civilization, 
or contiguity to the territory of the mandatory, can 
best be administered as integral portions of its terri- 
tory. 

In every case the mandatory shall render to the 
council an annual report in reference to the territory 
committed to his charge. 

The degree of authority, control, or administration 
to be exercised by the mandatory shall, if not pre- 
viously agreed upon, be explicitly defined by the coun- 
cil. 



A permanent commission shall be constituted to 
receive and examine annual reports and advise as to 
the observance of mandates. 

Article 23. Subject to and in accordance with con- 
ventions existing or hereafter agreed upon the mem- 
bers of the league — 

(a) Will eneavor to maintain fair and humane con- 
ditions of labor for men, women, and children in all 
countries; 

(b) Will undertake to secure just treatment of 
native inhabitants under their control; 

(c) Will intrust the league with general supervision 
over agreements relating to traffic in women and 
children and in opium and other dangerous drugs; 

(d) With supervision of trade in arms in countries 
in which it may be necessary; 

(e) Will make provision to secure freedom of com- 
munications and transit and equitable treatment for 
commerce of all members; 

(/) Will endeavor to take steps for the prevention 
and control of disease. 

Article 24. There will be placed under the direction 
of the league all existing international bureaux if the 

Earties to such treaties consent. All such bureaux 
ereafter established shall be placed under the direc- 
tion of the league. 

The council may include as part of the expenses of 
the secretariat the expenses of any bureau or commis- 
sion placed under the league's direction. 

Article 26. Amendments to this covenant will take 
effect when ratified by members whose representa- 
tives compose the council and by a majority of the 
members whose representatives compose the assembly. 
No amendment shall bind a member which signifies 
dissent, but in such case it shall cease to be a member. 



THE LAW. 



This is the paragraph that conceals but conforms to 
secret arrangements for the disposition of German 
Southwest African colonies to France and certain 
Pacific island possessions to Japan. 

It is a mere mandate for annexation. 



With the possible exception of Belgium the four 
principal allied powers, who sit in the council, will 
alone retain possession of the German colonies. They 
will therefore report to themselves annually and define 
their degrees of control, occupying the dual relation 
of principal and agent in this trust. 

Such a commission can not perform a serious func- 
tion. 

This program, when considered in connection with 
articles 24 and 282 infra, reveals a magnitude of labors 
and a diversity of administrative power, the logical 
development of which would abolish all conceptions 
of sovereignty and independence among nations. 



(See comment opposite arts. 23, 282.) 



It will be observed that there are no limits to the 
powers which the council may assume under this 
article nor are there any limitations upon the powers 
of the council in the whole covenant comparable to an 
international bill of rights. 

The structure contemplates not an association of 
equals but the subordination of the many to the au- 
thority of the few. The overruling authority is not a 
diplomatic assembly but a small group in which un- 
equal representation exists, combining and confusing 
legislative, executive, and judicial power. The dis- 
tinction may be clarified by a quotation from Dr. 
James Brown Scott's The Hague Peace Conferences, 
volume 1, pages 35-36: 

Itmustnot. however, be forgotten that great— indeed radical and 
essential— differences exist between a parliament and a diplomatic 
assembly. A parliament legislates for a nation, and bv means of 
proper representatives, it legislates for various component parts of 
the nation. International conferences in which the nations of the 



14 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



THE TREATY. 



THE LAW. 

world are represented, recommend to the nations represented, or 
legislate ad referendum. A parliament presupposes subordination; 
a conference equality. A parliament binds the dependent; a con- 
ference recommends to the equal and independent nations. The 
parliament, by means of majorities, decrees or issues a law; the 
conference, by means of unanimous agreement presents to the na- 
tions represented a draft which, when ratified by the nations, 
becomes by the approval of the internal and constitutional organs, 
the law of the ratifying nation. When ratified by the nations as a 
whole it becomes jus inter gentes; that is, international law in the 
strict sense of the word. At most the decree or resolution of a 
majority binds the majority, it does not, and under existing con- 
ditions it can not, well control an individual State. 

Oppenheim, in his three lectures on the league of 
nations (supra, p. 36) in 1919, declared it essential that 
the league start from the beginning made by the two 
Hague conferences. This the peace conference failed 
utterly to do. 

Annex I. Original Members of the League of Nations Signatories of the Treaty. 



The United States 

America. 
Belgium. 
Bolivia. 
Brazil. 
British Empire: 

Canada. 

Australia. 

South Africa. 

New Zealand. 

India. 
China. 
Cuba. 
Ecuador. 
Frapce. 
Greece. 
Guatemala. 



Argentine Republic. 

Chili. 

Colombia. 

Denmark. 

Netherlands. 

Norway. 

Paraguay. 



of Haiti. 
Hedjaz. 
Honduras. 
Italy. 
Japan. 
Liberia. 
Nicaragua. 
Panama. 
Peru. 
Poland. 
Portugal. 
Ptoumania. 
Serb-Croat-Slovene 

State. 
Si am. 

Czecho-slovakia. 
Uruguay. 

States Invited to Accede to the Coven an i 

Persia. 

Salvador. 

Spain. 

Sweden. 

Switzerland. 

Venezuela. 



Annex II. First secretary general of the league of nations. 

The Hon. Sir James Eric Drummond, K. C. M. G., 
C. B. 

PART II. BOUNDARIES OF GERMANY. 

PART III. POLITICAL CLAUSES FOR EUROPE. 

Section 1. Belgium. 



Article 31. Germany recognizes and consents to the 
abrogation of the treaty of neutralization of April 19, 
1839, and undertakes to recognize and to observe any 
conventions which may be entered into by the prin- 
cipal allied and associated powers, or any of them, in 
lieu thereof. 



The first part of this article apparently takes cog- 
nizance of the continuing force of the principle enun- 
ciated by the London conference of 1871, to the effect 
that it is an essential principle of the public law of 
Europe that no state may release itself from the obli- 
gations of a multilateral law making treaty, or modify 
the terms thereof, except with the consent of the other 
contracting parties previously obtained. 

The latter part of the article looks to some new 
arrangement whereby Belgium's territorial situation is 
to remain permanently fixed as a buffer state on the 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



15 



THE TREATY. 



Article 32. The condominium of Prussia and Bel- 
gium over Moresnet neutre is replaced by the passage 
of this territory under the single sovereignty of Bel- 
gium. 



Articles 33, 34 stipulate for the cession of Prussian 
Moresnet and Eupen and Malmedy to Belgium, in 
which within six menths the inhabitants may indicate 
in writing a desire to see the whole or a part of the 
territory remain under German sovereignty. The 
league of nations will decide as to any action taken. 



Article 35. Provision is made herein for the ap- 

f (ointment, within 15 days after the coming into 
orce of the treaty, of a commission to delimit the 
boundaries of the German territories going to Belgium. 
Article 36. With the actual transfer of sover- 
eignty "over the territories referred to above" — that 
is, upon the coming into force of the treaty by rati- 
fication — German nationals habitually resident in the 
territories will definitely acquire Belgian nationality, 
ipso facto, and will lose their German nationality. 
But German nationals who became residents in the 
territories after August 1, 1914, shall not obtain 
Belgian nationality without a permit from the Bel- 
gian Government. 



Article 37. However, within two years German na- 
tionals over 18 years of age, in such territories will 
be entitled to opt for German nationality, option by 



THE LAW. 

west coast of Europe, in which arrangement, however, 
it is anticipated that the United States, as one of the 
principal allied and associated powers, may not take 
part. 

This is, in effect, annexation of Moresnet neutre by 
Belgium with the consent of the powers. 



This territory has been in dispute since 1815 because 
of lack of agreement as to the boundary treaty of that 
date between the Netherlands and Prussia. 

The renunciation of the territory in favor of Bel- 
gium excludes the possibility of a plebiscite, and it 
does not appear that the inhabitants are given any 
right of option. 

Anciently and until the close of the eighteenth cen- 
tury it was the universal practice of successful bellig- 
erents, in cases of conquest and forced cession, to 
subject the inhabitants in such conquered or ceded 
territory forthwith to the new allegiance, regardless of 
their wishes or preferences. It is no longer permissi- 
ble, however, to hand such populations around, in 
view of the development of political principles which 
recognize the sovereighty of the people as the govern- 
ing factor in the political and social life of civilized 
states. This development has given rise to the pleb- 
iscite, under which the people may indicate en masse 
their wishes as to the disposition of the territory. 
(Funck-Brentano et Sorel (1887), 157 f. and 335 ff.; 
1 Rivier, 210.) 

Although the plebiscite was invoked as early as 
1552 by Henry II of France, after tho capture of 
Toul, Metz, and Verdun, its fixed position in interna- 
tional practice begins in the French revolutionary 
period. Inconsistent though it may seem, the United 
States has evinced little approval of the doctrine in 
its own practice. 

In the articles of the treaty referred to it must be 
assumed that the final disposition of the territories 
ceded to Belgium will be in accordance with the 
expressed wishes of the inhabitants, though no pledge 
is given that such will be the case, nor is the deposing 
authority expressly bound to observe such wisnes. 

If the final disposition of these territories is to 
depend upon plebiscites it seems needless to have 
provided for a formal delimitation of boundaries in 
advance. 

Complementary to the right of plebiscite in the 
mass of a population, looking to the protection of the 
political rights of a people with respect to their ter- 
ritory, there has developed for the protection of the 
minority in case of transfer of territory, the so-called 
right of option, under which the individual may retain 
his old allegiance, if he so desires, by the formal 
recording of that election. (3 Moore, Digest, sees. 
379-380; Boyd v. Thayer, 143 U. S., 135.) 

The article opposite contains the remarkable pro- 
vision that German nationals habitually resident in 
the ceded territory will become Belgian nationals im- 
mediately upon the actual transfer of sovereignty to 
Belgium, and will lose their German nationality. 
Since allegiance to Germany thus ceases, Germany's 
right and obligation to protect them likewise ceases. 
That is one the practical effects. 

It appears that German nationals who have become 
involuntary Belgian nationals may exercise the option 
to divest themselves of Belgian nationality within 



16 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

the husband including the wife, and by the parents, 
including their children under 18 years of age. 

Persons thus opting ''must within the ensuing 12 
months transfer tneir place of residence to Germany." 

They may retain tiieir immovable proparty in the 
territories and may carry with them their movable 
p:op3rty free from expert or import taxes, with 
re^pact to sU3h proparty. 



Article 39. Belgium will assume a portion of the 
public debt on account of such territories to be calcu- 
lated on the basis — 

(a) Of the ratio of the average for the three years of 
1911, 1912, and 1913 of revenues of the ceded terri- 
tories and the average for the same years of the rev- 
enues of the German Empire; or 

(b) Of the same ratio in its application to the Ger- 
man State to which such ceded territory belonged as 
of August 1, 1914, to be determined by the reparation 
commission. 



However, Belgium shall acquire all property and 
possessions situated in such territory, belonging to the 
German Empire and States, including tiie private 
property of the former German Emperor and other 
royal personages, free from any obligation to make 
compensation or to allow credit for same in the 
financial statement. 



THE LAW. 

two years after the coming, into force of the treaty 
and become German nationals again, the German 
nationality laws to the contrary notwithstanding. 

There is a provision of the German laws which 
declares that a German national acquiring allegiance 
elsewhere automatically forfeits his German nation- 
ality. It is difficult to understand how one who has 
forfeited a particular nationality may opt for it; yet 
since the acquisition of new nationality by Germans 
in this case is voluntary it may properly be viewed 
as void from the standpoint of German domestic law. 

As has been pointed out (supra, opposite article 30), 
the inhabitants of conquered or ceded territory may 
not be compelled to accept the new allegiance against 
their will. Nationality is a juridical status and is 
essentially voluntary. We have contended for the 
principle in various manifestations from the founda- 
tion of this Government, until at length it has become 
fixed in the law of nations. (3 Moore's Digest, sec. 
439; Scott, cases 375.) 

To force a new allegiance even upon the outcast 
German, and merely temporarily, as in this case, is 
none the less a violation of the law of nations. 

Even the congress of Vienna, that reactionary 
gathering which divided the spoils of Europe in 1815, 
did not attempt such a thing. On the contrary, in 
Article VII of the treaty of Paris of 1815, it is declared 
that in all countries which shall change sovereigns, a 
period of six years shall be allowed to the inhabitants, 
of whatsoever condition or nationality, "to dispose of 
their property, if they should think fit to do so, and to 
retire to whatever country they may choose." 

The present treaty requires those opting for Ger- 
man nationality, within the ensuing 12 months 
to "transfer their place of residence to Germany," 
which appears to mean that they shall quit the soil of 
Belgium physically and return to Germany. Whether 
they can emigrate to the United States or to some 
other place is doubtful, at least before they have 
transferred their residence to Germany. 

The provision with respect to their immovable and 
movable property appears to accord with enlightened 
practice. 

In cases of conquest or cession, such as this, the rule 
is embraced in the maxim, res transit cum suo onere; 
that is to say, the conqueror succeeding to the rights 
must also assume the burdens running with the terri- 
tory. However, there are exceptions in practice. As 
to the public debt, he need not share in that portion 
imposed for the prosecution of the war; and the calcu- 
lation of the debt to be assumed by Belgium properly 
refers to the prewar period. The portion to be as- 
sumed conforms to enlightened practice. 

Nothing is said, however, concerning other con- 
tractual obligations running with the territory, and it 
must be inferred that these are assumed subject to the 
law with respect to same. (1 Moore, p. 334; 1 West- 
lake, p. 75; Scott cases, 85.) 

An invasion of the law of inviolability of private 
property occurs in the article in question, and that 
relates to the taking over by Belgium of the private 
property of the former German Emperor and other 
royal personages along with public property. A cen- 
tury ago no distinction was made between the private 
Eroperty of the sovereign and the domains of the 
tate. Napoleon, for example, appropriated the pri- 
vate property of the elector of Hessel-Cases. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



17 



THE TREATY. 



THE LAW. 

Though the property of a monarch is assimilated to 
that of the State, and as such devolves on the suc- 
cessor, the private property of a sovereign or other 
head of the State in his personal capacity is under the 
protection of the principle of the inviolability of pri- 
vate property quite as fully as that of the indi- 
vidual subjects. (Phillipson, Termination of War, etc., 
p. 321.) 



Section II. Luxemburg. 



Articles 40, 41. Germany renounces the benefit of 
various treaties with Luxemburg and recognizes its 
withdrawal from the German Zollverein; agrees to 
the termination of the regime of neutrality and ac- 
cepts in advance any arrangements to be made by 
the allied and associated powers continuing the Grand 
Duchv as a buffer State. Germany also recognizes 
the Grand Duchy as sharing in the commercial ad- 
vantages to be enjoyed by the allied and associated 
powers. 



This is a purely political arrangement designed to 
take Luxemburg from under the influence of Ger- 
many's commercial and political system. 



Section III. Left Bank of the Rhine. 



Articles 42-44. Fortifications either on the left bank 
of the Rhine or on the right bank to the west of a 
line drawn 50 kilometers to the east of the Rhine is 
forbidden, as are military maneuvers and the assembly 
of armed forces in such area. 

Violations of these terms shall be regarded as a 
hostile act against the powers signatory of the treaty, 
and as calculated to disturb the peace of the world. 



In this arrangement, looking to the prevention of 
Germany ever again possessing a strategic frontier 
against France, it will be observed that all States 
signatory of the treaty, including those neutral in the 
Great War, should they ratify it, are to be bound by 
this provision. It is in effect the neutralization of 
such portion of Germany under a world guaranty. 



Section IV. Saar Basin. 



Article 45. As compensation for the destruction of 
coal mines in the north of France and as reparation, 
Germany cedes to France, in full and absolute posses- 
sion, with exclusive rights of exploitation, unencum- 
bered and free from all debts and charges, the coal 
mines of the Saar Basin. It will be for Germany to 
indemnify the proprietors. 

Article 46. The extent of France's rights in the 
Saar Basin mines is set out by reference to Chapter I 
of an annex. French ownership is extended to de- 
posits for which concessions may or may not have 
been granted, whether private or public property, 
with the right of working, not working, or transfer- 
ring the right to work the mines; all accessories and 
subsidiaries, including plant and equipment, by- 
product plants, electric lines, buildings, dwellings, 
schools, hospitals, and all other property enjoyed by 
the present owners, go with the mines to France free 
from all debts and charges. Germany must pay over 
any sums due employees on account of pensions for 
old age or disability. 

Workmen of French nationality may be introduced 
into the region, and they shall have the right to belong 
to labor unions. 

France shall have the right to establish and main- 
tain schools for its employees and of giving instruc- 
tion in the French language. It may also maintain 
hospitals, dispensaries, and other charitable and social 
institutions. 

France shall enjoy complete liberty with respect to 
the distribution, dispatch, and sale prices of the prod- 
ucts of the mines. 

S. Doc. 156, 66-1 2 «."-- : 



This article disregards utterly the rights of private 
property to the extent that the Saar Basin mines are 
privately owned, and is in effect an act of confisca- 
tion in violation of the spirit of law. (See comment, 
art. 74.) 



It does not appear that German workmen have a 
right to belong to labor unions. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

The government of the Saar Basin is provided for 
in Chapter II of an annex referred to in article 46. It 
will be intrusted to a governing commission of five 
members, chosen by the council of the league of 
nations, to include a citizen of France, a native of the 
Saar Basin who is not a citizen of France, and three 
members belonging to three countries other than 
France or Germany, appointed annually. One of the 
five will be designated as chairman, and he will act 
as the executive. 

The commission shall have all the powers hitherto 
belonging to the German Empire, Prussia, and Bavaria 
in such region and shall be charged with the protection 
abroad of the interests of the inhabitants. Neverthe- 
less, it is declared the existing nationality of the inhab- 
itants remains unaffected, unless they choose to acquire 
a different nationality. 

The inhabitants may elect local assemblies, every 
inhabitant over the age of 20 years having the right 
to vote, without distinction of sex. Such inhabitants 
as may desire to leave the territory may do so without 
restriction as to property. 

The governing commission is supreme in interpret- 
ing the scheme under which it is instituted, the 
decisions to be taken by majority. 

Article 47. The ultimate fate of the Saar Basin is 
here dealt with by reference to Chapter III of an 
annex. In this chapter it is set out that at the termi- 
nation of a period of 15 years the population of the 
Saar Basin may have a plebiscite, the vote to be taken 
by communes or districts on the three following propo- 
sitions: (a) Maintenance of the regime of the govern- 
ing commission ; (b) union with France; (c) union with 
Germany. 

All persons, without distinction of sex, more than 
20 years of age resident in the territory at the date of 
the signature of the present treaty will have the right 
to vote. Other conditions may be made by the league 
of nations. The league shall decide on the ultimate 
sovereignty, taking mto account the wishes of the 
inhabitants thus expressed. If the league decides in 
favor of Germany in whole or in part, the rights of 
France shall be repurchased in gold, the price to be 
fixed by a commission of three, one of whom shall be 
nominated by France, the second by Germany, and 
the third by the league of nations, who shall be neither 
a Frenchman nor a German. The league of nations 
will take all decisions by majority. 



Article 48. This deals with the fixing of boundaries 
of the Saar Basin. 

Article 49. Germany renounces in favor of the 
league of nations, in the capacity of trustee, the gov- 
ernment of the territory defined above. 



THE LAW. 

What, it may be asked, is the political status of 
German nationals under the governing commission? 
Their nationality is said to be unaffected, yet nation- 
ality implies allegiance, and allegiance involves the 
right and duty of protection. (Hershey, Essentials 
of Pub. Int. Law, p. 236.) The protection of German 
nationals is given over to the governing commission. 
Germany may not exert herself anywhere in their 
behalf. No hindrance is placed in their way against 
departing from the country or acquiring a new nation- 
ality; in fact, these clauses, including ample safe- 
guards with respect to their private property, are of 
customary liberality. 



The inhabitants may elect local assemblies, but it 
is nowhere set out what the degree of influence such 
assemblies will have in the ordering of the domestic 
concerns. 



It is not quite plain why the "repurchase" of the 
Saar Basin by Germany should have been made con- 
tingent upon a plebiscite. The population is over- 
whelmingly German, and since the qualified voters are 
those only over 20 years of age who were "resident in 
the territory at the date of the signature of the present 
treaty," that is, June 28, 1919, no amount of coloniza- 
tion by France can overcome that fact. 

The question arises, however, may those who have 
meantime removed from the Saar Basin back to Ger- 
many enjoy the privileges of taking part in the plebi- 
scite? They would seem to be qualified if more than 
20 years of age, since the provision designates "all 
persons," etc., yet it is not clear. 

The league snail decide, "taking into account the 
wishes of the inhabitants as expressed by the voting," 
with respect to the final disposition of the territory. 
There is no obligation to respect the results of the 
plebiscite; it is merely to be taken into account along 
with other things. 

Nothing is said of the rights of German labor. 
France, as the one big employer in the territory, dom- 
inating practically every business and enterprise, is 
free wholly to substitute French for German labor, 
through wnich the entire German population might be 
compelled to emigrate. In such a contingency it 
might then become important to settle whether ab- 
sentees, who were resident in the Saar Basin in 1919, 
had the right to take part in the plebiscite. 



A unique question of sovereignty arises from this 
article. It is stated that Germany renounces in favor 
of the league of nations as trustee only the government 
of the Saar Basin, and it is contemplated that German 
sovereignty subsists, since provision is made for "re- 
nunciation of sovereignty or cession" by Germany 
ultimately, in the event the league of nations decides 
to award the whole or a part of the territory to France. 

Yet the political or governmental authority over a 
territory is the very essence of sovereignty, and by the 
provisions of Chapters II and III this authority, inter- 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



19 



THE TREATY. 



THE LAW. 

nal as well as external, is vested in the governing com- 
mission. It is even charged with the protection 
abroad of German nationals, inhabitants of the terri- 
tories. It may thus be contended that Germany has 
parted with sovereignty over the Saar Basin. If such 
a condition as the suspension of sovereignty is a legal 
possibility it may be that such occurs in the Saar 
Basin. (1 Moore, pp. 252-254.) 

In whatever terms the treaty seeks to describe the 
transaction, however, it appears to be a simple case of 
disguised cession, or all fours with the so-called leased 
territory of the European powers and Japan in China, 
the restoration of such territories depending upon 
certain and uncertain contingencies. The Saar Basin 
case differs, of course, in the fact that a third state, 
and not the cessionary is given exclusive rights of 
exploitation. (1 Westlake, 133-139; Hershey, pp. 
184, 185.) 



Section V. Alsace-Lorraine. 



The high contracting parties recognizing the moral 
obligation to redress the wrong done by Germany in 
1871 both to the rights of France and to the wishes of 
the population of Alsace-Lorraine, which were sepa- 
rated from their country in spite of the solemn protest 
of their representatives at the assembly of Bordeaux 
agree upon the following articles: 

Article 51. The territories of Alsace and Lorraine 
are retroceded to Fran<ft. 



Article 53. The political status of the inhabitants 
of Alsace-Lorraine is fixed in this article by reference 
to an annex which makes the following decisions: 

As from November 11, 1918, the following persons 
are ipso facto reinstated in French nationality: 

(1) Persons who lost French nationality under the 
treaty of 1S71 and acquired German nationality. 

(2) The legitimate descendants of those referred to 
above, except those whose ascendants in the paternal 
line include a German who emigrated into Alsace- 
Lorraine after July 15, 1870. 

(3) All persons born in Alsace-Lorraine of unknown 
parents or whose nationality is unknown. 



As set out in the preamble the taking of Alsace- 
Lorraine by Germany in 1871, constituted a moral 
nftt a legal wrong; that is to say, title to the territory 
of another State founded in conquest is quite as legal 
and unimpeachable as if founded upon voluntary 
cession. It is a principle that violates our modern 
sense of justice but it is nevertheless a settled one. 

It is to the credit of the high contracting parties 
that they recognized the moral obligation to redress 
this wrong both to the rights of France as sovereign 
over the territory and to the wishes of the people. 
If this measure were applied universally the moral 
principle would thereby attain the position of a legal 
one, since the basis of all law is universal acquiescence 
or assent. The high contracting parties have not 
only failed to seize the opportunity to legalize the 
principle against conquest and the rights of peoples to 
choose their own way of obedience by the universal 
application of these principles, but they have destroyed 
and nullified the force of this instance of its application 
in settlements which repudiate these principles (see 
Part IV, sec. 8, art. 156-158); nor is any intimation 
given in the treaty that existing instances of the 
subjection of peoples to alien governments against the 
will of such peoples constitutes a moral wrong. (See 
sec. 6, art. 147.) 

It will be observed that the treaty here attempts 
to determine the French nationality of the inhabitants 
without in any way consulting their wishes. It 
institutes three broad classes of persons whose na- 
tionality is changed arbitrarily. Those in the classes 
have nothing to say in the matter. 

The first class "reinstated" in French nationality 
includes all those who, upon the cession of Alsace- 
Lorraine to Germany in 1871, declined to avail them- 
selves of the right to opt for French nationality under 
Article II of the treaty of Frankfort, but chose to 
remain and acquire German nationality. 

It is conceivable that many of this class are satis- 
fied with their acquired German nationality and are 
thus involuntarily transferred to a new allegiance. 

And so in the second class, the descendants of the 
first class, it is probable that many will not willingly 
renounce their German allegiance. 



20 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 



The annex also sets out the following classes as 
eligible to opt for French nationality: 

(1) All persons whose ascendants include a French- 
man or a French woman who failed to opt for French 
nationality in 1871. 

(2) All foreigners, not German nationals, who be- 
came citizens of Alsace-Lorraine prior to August 3, 
1914. 

(3) All Germans domiciled in Alsace-Lorraine since 
July 15, 1870, or who had an ascendant so domiciled. 

(4) All Germans, domiciled or born in Alsace- 
Lorraine, who served in the allied or associated armies. 

(5) All persons born in Alsace-Lorraine before May 
10, 1870, of foreign parents and the descendants of 
such persons. 

(6) The husband or wife of any person whose 
French nationality may have been restored in the 
three classes referred to above, or who may have 
claimed and obtained French nationality in accordance 
with the preceding provisions. 

Subject to the above exceptions no Germans borh 
or domiciled in Alsace-Lorraine shall acquire French 
nationality, even though they are citizens of Alsace- 
Lorraine, except by the normal process of naturaliza- 
tion, on condition of having been domiciled from a 
date previous to August 3, 1914, and of submitting 
proof of three years unbroken residence. 

France will be solely responsible for their diplomatic 
and consular protection from the date of application 
for naturalization. 



THE LAW. 



These persons are denied the right to opt for Ger- 
man nationality. 



The rule that the nationality of the wife and chil- 
dren follow that of the husband and father is appar- 
ently ignored. The anomalous situation is thus made 
possible that a French national, residing in French 
territory, may have a wife who is an alien to him 
and to her own children. 

The treaty, while arbitrarily restricting tbe right 
of option to limited classes and to a particular na- 
tionality (French) does not attempt to set aside the 
principle of naturalization. 



The practice of enlightened states, which may be 
said to conform to the law in respect of protection 
abroad of declarant aliens, is that such protection is 
asserted to the full extent in countries other than those 
of origin. As against their native countries no such 
rights are claimed in view of the continuing allegiance 
of such declarants up to the moment of complete 
acquirement of a new nationality. The rule rests 
upon a sound and logical foundation. (3 Moore, pp. 
893, 895.) 

However, France proposes to override it as against 
Germany, in behalf of German nationals who have 
declared their intention to become French citizens. 
It is safe to say that the position can only be main- 
tained by a stronger as against a weaker state. 

Considering the nationality provisions generally 
with respect to Alsace-Lorraine, it will be seen that a 
plebiscite has not been considered, although Germans 
may predominate in the territories; nor is option 
freely granted. Large classes of persons are made 
French citizens by the fiat of the treaty and other re- 
stricted classes are declared eligible to claim French 
citizenship. None is declared capable of choosing any 
other nationality. Those in whom German nation- 
ality continues are marked out by the treaty with 
equal definiteness. 

The utter absence of observance of the doctrines of 

[)lebiscite and option, and of uniformity in dealing with 
ike situations, may be seen by comparison with' arti- 
cles 36-37, whereby German nationals resident in the 
territories ceded to Belgium acquire Belgian nation- 
ality ipso facto and lose their German nationality; 
however, within two years German nationals there may 
opt for German nationality. 



INTERNATIONAL. LAW AND THE TREATY OF PEACE. 



21 



THE TREATY. 

Article 55. This deals with the public debt of 
Alsace-Lorraine by reference to article 255, Part IX, 
of the treaty, which sets out that since Germany re- 
fused to assume any of the public debt of Alsace- 
Lorraine in 1871 France shall receive the territories 
free and quit of all public debts, nor shall any credit 
be given for same on the reparation account. 

Article 56. Iu conformity with the provisions of 
article 256, Part IX, France shall enter into possession 
of all property and estate in the territories belonging 
to the German Empire, the German States, as well as 
the Crown property and the private property of the 
former German Emperor and other German sover- 
eigns, without any payment or credit on account of 
same. 

Article 58. Provision is made for "repayment in 
marks of the exceptional war expenditure advanced 
during the course of the war by Alsace-Lorraine, or by 
public bodies in Alsace-Lorraine on account of the 
Empire in accordance with German law, such as pay- 
ment to the families of persons mobilized, requisitions, 
billeting of troops, and assistance to persons who have 
been evacuated." 

Article 59. France will collect on its own account 
Imperial taxes of every kind leviable and not collected 
at the time of the armistice, November 11, 1918. 

Article 60. Germany shall restore without delay to 
Alsace-Lorrainers all property, rights, and interests 
belonging to them on November 11, 1918, situated in 
German territory. 

Article 62. Germany undertakes to bear the ex- 
pense of all military and civil pensions earned in 
Alsace-Lorraine on November 11, 1918, and to pay 
annually the sums to which persons resident hi Alsace- 
Lorraine would have been entitled under German 
rule. 

Article 63. Germany's liability for injury and dam- 
age is declared by reference to Part VIII (reparation) 
as follows : 

The allied and associated Governments affirm and Germany 
accepts the responsibility of Germany and her allies for causing all 
the loss and damage to which the allied and associated Govern- 
ments and their nationals have been subjected as a consequence 
of the war imposed upon them by the aggression of Germany and 
her allies. 

The allied and associated Governments require and 
Germany undertakes to make compensation for all 
damage done to the civilian population of the allied 
and associated Governments and to their property 
during the period of the belligerency of each by such 
aggression by land, by sea, and from the air, and, in 
general, all damage as defined in Annex I, hereto. 



THE LAW. 



In principle, therefore, there is no difference between 
the conquest and the reconquest, so far as the conduct 
of the victors is concerned. Each takes all it can get 
over and above the reparation account. 



See comment, article 39. 



Thus France not only does not assume any portion 
of the German debt in connection with Alsace-Lor- 
raine, but there is to be repaid the sums Alsace- 
Lorraine, in common with all parts of the Empire, was 
called on to expend as indicated. 



Damages have been calculated on the premise that, 
since Germany was the aggressor, she precipitated and 
carried on an unlawful war, and should therefore be 
responsible for all damage of whatsoever kind, whether 
resulting from the operations of herself and her allies 
or from the measures of the allied and associated Gov- 
ernments. While it is within the power of a successful 
belligerent to impose any terms he wishes, the law of 
nations nowhere makes any distinction between a just 
and an unjust war, nor between a lawful and an un- 
lawful war. In view of the law, since each sovereign 
nation may alone determine the demands of its welfare 
and interest, it is the right of each to determine when 
its exigencies require a resort to war. Since 1899 
(The Hague, convention No. 4) a distinction has been 
made between a war lawfully declared and one not 
thus declared. 

From a moral standpoint a war may be unjust and 
unrighteous, as that precipitated by Germany un- 
questionably was, but it can not be unlawful, since it 
is the supreme and final appeal of all States in the 
protection of their well-being. 

It has been argued, and not without force, that by 

reason of the obligations assumed by Germany toward 

•Belgium under the treaty of neutralization of April 

19, 1839, it became legally impossible for Germany to 



22 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 



The annex then declares: 

"Compensation may be claimed from Germany 
under article 232 above in respect of the total damage 
under the following categories: 

"(1) Damage done to injured persons and to sur- 
viving dependents by personal injury to or death of 
civilians caused by acts of war, including bombard- 
ments or other attacks on land, on sea, or from the 
air, and all direct consequences thereof, and of all 
operations of war by the two groups of belligerents 
wnerever arising. 



THE LAW. 

carry on war against Belgium; and that Germany may 
not therefore claim the benefits of the laws of war 
ordinarily obtaining; that is to say, in the case of 
Belgium, Germany is not entitled to deny responsi- 
bility for such destruction, fines, contributions, requi- 
sitions, and other warlike acts as are within the 
compass of the lawfid rights of belligerents. 

Taking into consideration this exception, there is 
no principle of public international law that enlarges 
the legal responsibility of one of the belligerents be- 
cause it was the aggressor. In fact, it is generally 
impossible to determine with accuracy whether or not 
a particular State was or was not the aggressor. It 
is clear in the Franco- Prussian War of 1870-71, in the 
Anglo-Boer War of 1900, and in the Turco-Italian War 
of 1912, but no one has yet determined whether 
Russia or Japan was the aggressor in 1904. (See the 
Peace Problem (1916) John Bassett Moore.) 

In order to avoid as far as possible the evils of 
society, it is agreed, says Vattel, to regard every law- 
fully declared war as just on both sides. (Halleck, 
International Law, 1th ed-, vol. 1, p. 571.) 

This statement of the law has undergone no change 
up to the present. Out of this view has necessarily 
sprung the law of neutrality. 

War brings into operation a great variety of laws 
defining rights and duties of belligerents and neutrals, 
and among its rights accruing to a belligerent is that 
to inflict any damage upon his enemy, which has a 
military object. There are certain specific limitations 
upon a belligerent's means of injuring his enemy, both 
at sea and on land, designed to prohibit needless and 
wanton injury and damage. However, it may be 
asserted as a general principle of the laws of war that 
all damage and injury inflicted in pursuit of military 
object are lawfid. (Lawrence, 4th ed.,. sec. 206, p. 
549; Spaight, 112.) 



Civilians are under the protection of the laws of 
war, but their immunity from direct and intentional 
injury is dependent upon peaceable and nonhostde 
conduct. It is one of the marked moral achievements 
of the last century that the great divisions of popula- 
tions of belligerent States into combatants and non- 
combatants, with definite law regulating their rights 
and duties, have been made. 

Whence, civilians, taking no part in hostdities, ma}' 
not lawfully be made the object of direct injury. 
Nevertheless, their injury or killing:, as a mere inci- 
dent to the carrying out of a lawful military opera- 
tion involves no responsibdity. For example, enemy 
munition plants are lawful objects of attack. If in 
such attacks death should ensue to all of the em- 
ployees, men, women, and chddren, no liabdity what- 
ever would rest upon the government of the attacking 
force. So, too, the incidental deaths of civdians in 
cases of bombardment of defended towns, villages, 
buildings, and places involve no liability. (Hodand, 
p. 30; Spaight, pp. 174-180.) 

It has never been settled what constitutes a ''de- 
fended" place, but it has been contended by eminent 
authority (Westlake, Codected Papers) that the pres- 
ence of a single soldier or company of soldiers might 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



23 



THE TREATY. 



" (2) Damage caused by Germany and her allies to 
civilian victims of acts of cruelty, violence, and mal- 
treatment (including injuries to life or health as a 
consequence of imprisonment, deportation, intern- 
ment, or evacuation, or exposure at sea, or of being 
forced to labor) wherever arising and to the surviving 
dependents of such victims. 



" (3) Damage caused by Germany or her allies in 
their own territory or in occupied or invaded territory 
to civilian victims of all acts injurious to health or 
capacity to work or to honor, as well as to surviving 
dependents of such victims. 

" (4) Damage caused by any kind of maltreatment 
of prisoners of war. 

" (5) As damage caused to the peoples of the allied 
and associated powers all pensions and compensation 
in the nature of pensions to naval and military vic- 
tims of the war, whether mutilated, wounded, sick, 
or invalided, and to the dependents of such victims. 

" (6) The cost of assistance by the Governments of 
the allied and associated powers to prisoners of war 
and their families and dependents. 



THE LAW. 

be sufficient to constitute a defended place. If this 
be so, it may be said that in the present Great War 
hardly a city, town, or village in any of the belligerent 
States was undefended, so great were the proportions 
of the population taken into the armies. 

As to the immunity of noncombatants, it may be 
asked to what degree, if any, was this immunity com- 
promised in the present Great War in view of the uni- 
versal mobilization of man, woman, and child power 
behind the armies of the respective belligerents ? 

The following principles of law are settled : 

(a) That acts of war, including bombardments and 
other attacks on land and from the air, involve no 
legal liability whatever so long as they have a military 
object and are not directed against an undefended 
place. 

(b) That attacks at sea against public armed enemy 
vessels involve no liability; that attacks upon un- 
armed merchantmen, not guilty of flight or resistance, 
are illegal and do involve liability. But even where 
flight or resistance has been overcome, there is a legal 
obligation to provide for the safety of crew and 
passengers. 

The placing upon a vanquished belligerent of re- 
sponsibility for all damage and injury resulting from 
the operations of the victor is a mere exercise of power 
in the nature of indemnity; it can not be construed 
as reparation. 

(2) Damage by Germany and her allies caused to 
civilian victims by acts of cruelty, violence, or mal- 
treatment may properly give rise to legal responsi- 
bility where such acts of cruelty, violence, and mal- 
treatment were not permissible— and many of such are — 
under the laws of war. For example, the right of 
reprisal upon a rebellious population in a militarily 
occupied district may lawfully involve extreme vio- 
lence, even to the shooting of civilians and the destruc- 
tion of whole towns. (Spaight, 465-470.) 

It is the right of a belligerent state to imprison, 
intern, and deport enemy civilians, particularly male 

f)ersons of military age, and to use reasonable discip- 
inary measures against them for cause. 

Legal responsibility properly lies in the matter of 
exposure at sea in view of the settled principle requiring 
provision for the safety of crew and passengers of a 
captured vessel. 

As to acts injurious to health or capacity to work, 
such conditions might follow the exercise of lawful 
violence, as reprisals against a disobedient or resisting 
population in a militarily occupied territory. Family 
honor is clearly under the inviolablo protection of the 
laws of war. (The Hague, 1907, convention 4, art. 
46.) 

(4) There is no legal liability in cases of damage 
resulting from reasonable disciplinary measures in 
which the victim was culpable. 

(5) This is a mere exercise of power by the victor 
over the vanquished in the nature of indemnity. 



It is customary among belligerents to compute the 
respective costs of maintenance of prisoners of war, 
including salaries allowed officers, and to settle any 
balance at the peace. 

The provision is in the nature of indemnity where it 
exceeds this custom. 



24 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

"(7) Allowance by the Governments of the allied 
and associated powers to the families and dependents 
of mobilized persons and persons serving with the 
armed forces. 

" (8) Damage caused to civilians by being forced by 
Germany or her allies to labor without just compensa- 
tion. 



"(9) Damage in respect of all property wherever 
situated belonging to any of the allied or associated 
powers or their nationals, with the exception of naval 
and military works or materials, which have been 
carried off, seized, injured, or destroyed by acts of 
Germany or her allies on land, on sea, or from the 
air, or damage directly in consequence of hostilities or 
of any operations. 



" (10) Damage in the form of levies, fines, and other 
similar exactions imposed by Germany or her allies 
upon the civilian population." 



Article 64. Regulations concerning the control of 
the Rhine and the Moselle are laid down by reference 
to Part XII of the treaty. Part XII, Chapter IV, pro- 
vides, amorg other things, that Germany shall cede to 
France tugs and vessels registered in German Rhine 
ports, including fittings and gear, installations, berth- 
ing and anchorage accommodations, docks, ware- 
houses, plant, etc., whether publicly or privately 
owned, in an amount to be decided by an arbitrator 
to be appointed by the United States, "due regard 
being had to the needs of the parties concerned." The 
value of such property shall be set off against the total 
sums due from Germany. 

Article 65. This article gives to France certain eco- 
nomic advantages in the parts of Strasburg and Kehl 
under the Central Rhine Commission, to be presided 
over by a Frenchman. 



This is a mere exercise of power in the nature of 
indemnitv. 



(8) The services of civilians in militarily occupied 
territory may be requisitioned, nor does the law require 
more than that a receipt for such services shall be 
given. The receipt does not imply liability on the part 
of the giver to redeem it. (2 Westlake, 270; Bord- 
well, 319; Spaight, 402-405.) 

This provision ignores the whole body of settled law 
with respect to allowable damage and destruction. 
Such legal destruction includes : 

(a) All destruction of naval and military works, 
including shops, railroads, and equipment, munition 
plants, barracks and all buildings used by armed 
forces (other than hospitals). 

(b) Destruction of private property incidental to 
bombardment. 

(c) Destruction of property of military value to 
prevent it falling into the hands of the enemy. 

. (d) Destruction of property to facilitate an attack 
or to impede pursuit. 

To summarize, it may be said that all destruction 
which serves a military end and is not purely wanton 
is lawful. (Spaight, 111 et seq., 418.) 

As to property carried off or seized, the law makes 
a distinction between public movables, that is, Govern- 
ment-owned property, and private property. The 
former is confiscable under the laws of war; the latter 
is not. (Spaight, 411, 412; 2 Westlake, 103-104; 
Bonfils, Nos. 1191-1193.) 

Yet even private property may be seized and con- 
verted by a belligerent if it is noxious, that is to say, 
if it is of a character lending itself peculiarly to war- 
like use; so, too, private property may be taken 
under the right of requisition. (Spaight, 199-200.) 

(10) Levies (contributions and requisitions) and 
fines are lawful measures of war. Levies in service, in 
supplies, and in cash are lawful if undertaken for the 
needs of the army or in lieu of or in addition to taxes, 
for the support of the administration of occupied ter- 
ritory, provided that they are in proportion to the 
resources of the territory; and provided further that 
they are not levied for mere purposes of plunder. 

Fines are a lawful measure against the disobedience 
of a population in a militarily occupied territory, if 
responsibility for disobedience be collective. It is the 
mildest manifestation of the right of reprisal. (Spaight, 
383, 408-410.) 

This is purely an economic advantage in the nature 
of indemnity. It is repugnant to the spirit of the law 
at least to the extent that private property exists in 
such tugs, vessels, etc. (See comment, infra, art. 74.) 



This is in the nature of indemnity. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



25 



THE TREATY. 

Articles 66, 67. Railway and other bridges across 
the Rhine within the limits of Alsace-Lorraine through- 
out their length become French property, as do all 
imperial railways and tram concessions, entailing no 
payment on the part of France. 

Articles 68-71. Additional economic advantages are 
given to France, including exemption from customs 
duties on natural or manufactured products of Alsace- 
Lorraine entering Germany and the import into 
Alsace-Lorraine of certain goods from Germany free 
from internal duties in Germany; supply of electric 
current to Alsace-Lorraine by Germany; prohibition 
of German participation in enterprises in Alsace- 
Lorraine; renunciation of German rights regarding 
trade in potash, salts. 

Article 74. The French Government reserves the 
right to retain and liquidate all the property, rights, 
and interests which German nationals or societies 
controlled by Germany possessed in Alsace-Lorraine 
on November 11, 1918. Germany will compensate 
her nationals thus dispossessed. The product of these 
liquidations shall be applied in accordance with the 
stipulations of Sections III and IV of Part X of the 
treaty. 

Section III (art. 296) provides for the settlement 
through clearing offices to be established by each of 
the high contracting parties of the following classes 
of debts: 

(a) Debts due before the war from a national of 
an allied or associated power, residing within its ter- 
ritory, to a national of Germany or her allies, residing 
in its territory. 

(jb) Debts payable during the war to nationals of 
allied or associated powers, payment of which was 
suspended by the war. 

(c) Any interest accrued before or during the war 
on securities issued by Germany or her allies. 

{d) Any capital >uins which have become payable 
in respect of securities issued by Germany or her 
allies. 

The high contracting parties will prohibit all settle- 
ments otherwise than through the clearing offices; 
they will be respectively responsible for the payment 
of such debts as were due from their nationals. (Debts 
due by inhabitants of invaded territory will not be 
thus guaranteed, nor does the guaranty extend to a 
debtor who was insolvent before the war or whose 
property was liquidated under emergency legislation.) 



Private settlements of debts between a national of 
an allied or associated power and a national of Ger- 
many or her allies is assimilated even after peace to 
trading with the enemy and will involve "the same 
penalties as are at present provided" in such legisla- 
tion. All legal processes for the private recovery of 
such debts will be prohibited. 

Creditors shall give notice to the clearing office 
within six months of debts due to them. 

Any person having claimed payment of an enemy 
debt which is not admitted in whole or in part shall 
pay to the clearing office by way of fine interest at 



THE LAW. 



This is in the nature of indemnity. No obligation 
with respect to uniformity of tolls appears to rest 
upon France in connection with the use of these 
international bridges. 

These are in the nature of indemnity. 



This article and its references (Sees. Ill ami IV of 
Part X) commit the allied and associated Govern- 
ments to the confiscation of all private property of 
German nationals, whether situated in their own ter- 
ritories or in the territories taken from Germany, and 
restitution of or compensation for all private property 
of nationals of allied or associated powers in German 
hands. It is true that it is declared that Germany 
will compensate her nationals who are thus dispossessed, 
but hi view of the extent of the various indemnities 
imposed it is doubtful that this declaration can ever be 
fulfilled. It is therefore, at best, disguised confiscation. 

From antiquity to the dawn of the nineteenth 
century it was the custom of a belligerent to seize 
and convert the private property of nationals of his 
enemy, while the private enemy individual might be 
dealt with after the desires of the captor. In the last 
century, however, a settled distinction in the law has 
differentiated the private unarmed enemy person and 
his property from the public armed enemy person 
and public property, on the principle that war is a 
relation between States and not between individuals. 
The former, classified as noncombatant, is entitled 
to protection in his person and property; the latter, 
classified as combatant, may be made the object of 
direct hostile action. As to public property, all 
movables of the enemy Government are liable to 
confiscation. Private property is under the protec- 
tion of written law, declaring it to be inviolable. 
(The Hague, 1907, Convention IV, art. 46.) This 
must be understood to be qualified, however, by 
certain definite exceptions. (See comment on article 
63, subsection 9.) 

This would require an act of Congress to carry it 
into execution. 

As to the universally recognized rule of law for- 
bidding ther Confiscation of private enemy debts, see 
infra, comment opposite article 302. 



26 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

5 per cent on the part not admitted during the 
pendency of such claim. 

Persons "having unduly refused to admit the whole 
or part of a debt claimed from him" shall pay by way 
of fine 5 per cent of the amount "with regard to 
which his refusal shall be disallowed." 

Clearing offices shall be responsible for the collec- 
tion of such fines, which "will be credited to the 
other clearing office, which shall retain them as a con- 
tribution toward the costs" of the office. 

A mixed arbitral tribunal is set up as a court of 
appeal as between disagreeing clearing offices. 

Section IV (Article 297) sets out the following with 
respect to the private property, rights, and interests 
of German nationals situated in allied and associated 
countries: 

(a) Germany shall immediately discontinue all war 
measures (including liquidation and transfer) taken 
against the property, rights, and interests of nationals 
of allied and associated powers, such nationals to enjoy 
full rights in accordance with article 298. 

(6) The allied and associated Governments reserve 
the right to retain and liquidate all property, rights, 
and interests belonging to German nationals, or com- 
panies controlled by them within their territories, 
colonies, possessions, and protectorates, including the 
territories ceded. 

German nationals shall not be able to dispose of 
such property nor to subject it to any charges. 

German nationals who acquire ipso facto the nation- 
ality of an allied or associated power shall not be liable 
to such deprivation of their private property. 



THE LAW. 



(e) Nationals of allied and associated powers shall 
be entitled to compensation in respect of damage or 
injury to their property, rights, or interests, including 
any company in which they are interested, due to war 
measures of liquidation or transfer; and they may be 
compensated out of private property of German na- 
tionals in the hands of allied and associated Govern- 
ments. Germany will receive credit on the repara- 
tion account as to any balances, which shall be paid 
to the reparation commission. 

(i) Germany undertakes to compensate her nation- 
als thus deprived of their private property by the 
allied and associated powers. 



It appears under this subsection that the United 
States is empowered to seize, in addition to the private 
property situated in the United States of German 
nationals resident in Germany already sequestered by 
the Alien Property Custodian, the private property of 
all German nationals resident in the United States. 
An act of Congress would, however, be necessary as a 
condition precedent to the exercise of that power. 

"What we have said of the detention of the enemy's person, also 
holds good with respect to the right to seize and confiscate all enemy 
property found within the territory of the other belligerent at the 
commencement of hostilities. In former times this right was exer- 
cised with great rigor, but it has now become an established, though 
not inflexible, rule of international law that such property is not 
liable to confiscation as prize of war. This rule, " says Chief Justice 
Marshall (Brown v. United States, 8 Cranch, R. 123), "like other 
precepts of morality, of humanity, and even of wisdom, is addressed 
to the judgment of the sovereign — it is a guide which he follows or 
abandons at his will; and, although it can not be disregarded by 
him without obloquy, yet it may be disregarded." (Halleck, 4th 
ed., vol. 1, p. 587.) 

The power to confiscate enemy property can not be 
exercised by the United States, however, except by 
the direct authority of Congress. (Brown v. United 
States, 8 Cranch, Pi. 123.) The extent of authority 
existing in the absence of such legislation is to seques- 
ter using reasonable care to conserve such property for 
its owners, under an obligation to restore it or its 
equivalent at the peace as we have done through the 
law creating the Alien Property Custodian. Even this 
right is generally qualified by treaty. (See treaty 
with Prussia, 1828, 2 Malloy, p. 1496.) 

The far-reaching effect of this policy is likely to 
hamper American investments all over the world. 



See comment opposite article 74. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



27 



THE TREATY. 

0") The amount of all capital taxes levied on 
property of allied and associated nationals by Germany 
after November 11, 1918, shall be refunded. 

By sections a and b (art. 298) Germany undertakes 
to restore to nationals of allied and associated powers 
their property, rights, and interests as they existed 
prior to the war, and not to subject such property, 
rights, and interests to any measures not applied 
equally to property of German nationals. 

By Annex, paragraph 1, under Section IV, Germany 
confirms all acts of allied and associated powers with 
respect to the property of Germany nationals. 

By paragraph 2, Germany agrees that no claim or 
action shall be brought against any allied or associated 
power or person on account of acts or omissions with 
respect to German property. 

By paragraph 10, Germany will, within six months, 
deliver to each allied or associated power, all securities, 
certificates, deeds, or other documents of title held by 
its nationals and relating to property, rights or inter- 
ests situated in the territory of that allied or associated 
power, including any shares, stock, debentures, deben- 
ture stock, or other obligations of any company in- 
corporated- in accordance with the laws of that power. 
She will further furnish any information desired con- 
cerning property of her nationals so situated. 

By the concluding paragraph of the Annex the fore- 

fjoing provisions are declared to apply to industrial, 
iterary, and artistic property. 



THE LAW. 



On the whole, it may be said that in the pursuit of 
large indemnities the allied and associated Govern- 
ments have in these articles repudiated principles 
which, in the language of Spaight, the eminent English 
publicist, constitute the Magna Charta of war law. 
(War Rights on Land, p. 374.) And since the remain- 
ng great powers have concerted in its repudiation it 
may be asserted that they have brought to naught the 
enlightened and laborious work of a century in this 
regard. 

This provision appears, with respect to some of the 
signatories, to make a ''scrap of paper" of the "revised 
Berne convention" for the protection of copyrights, 
signed November 13, 1908, and other similar treaties. 
(See comment, art. 286.) 



Section VI. Austria. 



Articles 80. Germany acknowledges and will respect 
strictly the independency of Austria within frontiers to 
be fixed and agrees that the independence is inalien- 
able. 



Provision in the new German constitution for a seat 
for an Austrian delegate in the German Reichsrat was 
held by the principal allied and associated powers to 
be violative of this obligation "to respect" Austrian 
independence. (Compare with the mutual obligation 
"to respect" the territorial integrity and existing 
political independence, under art. 10.) The racial 
characteristics of what is left of Austria are predomina- 
bly German, the subject peoples of the old dual mon- 
archy having been accorded the right of self-determi- 
nation. Yet the achievement of German unity is for- 
ever forbidden. This ignores the inexorable lessons of 
history and makes for Irredentism. 



Section VII. Czecho-Slovak State. 



Articles 81-83. Germany recognizes thein depend- 
ence of the Czecho-Slovak State and renounces all 
rights and title over a portion of Silesian territory 
therein described. 

Article 84. German nationals habitually resident in 
territories recognized as forming part of the Czecho- 
slovak State will obtain Czecho-Slovak nationality 
ipso facto and lose their German nationality. 

Article 85. Within a period of two years German 
nationals over 18 years of age habitually resident in 
such .territories may opt for German nationality 
"within the same period Czecho-Slovaks who are Ger- 
man nationals and are in a foreign country will be 
entitled, in the absence of any provision to the con- 
trary in the foreign law, and if they have not acquired 
the foreign nationality, to obtain Czecho-Slovak na- 
tionality by complying with the requirements laid 
down by the Czecho-Slovak State." 



See comment opposite article 36. 



See comment opposite article 37. 



28 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 



THE LAW. 



Article 86. The Czecho-Slovak State agrees to em- 
body in a treaty with the allied and associated powers 
provisions for the protection of inhabitants differing 
from the majority in race, language, or religion. 



See treaty of Berlin, 1878, articles 5, 25, 35, and 44, 
recognizing conditional independence of Bulgaria, 
Roumania, Serbia, and Montenegro. (Martens, N. R. 
G., 2d ser., Ill, p. 449.) This implies the right, and 
perhaps the duty, of intervention. 



Section Vin. Poland. 



Articles 87-88. Germany recognizes complete inde- 
pendence of Poland and cedes certain territory, pro- 
vision being made for delimitation of frontiers, and 
for plebiscites in portions of Upper Silesia. 



By Annex I under Section VIII, those qualified to 
vote shall be persons, without distinction of sex, who 
have completed their twentieth year and who were 
born in the plebiscite area or have been domiciled 
therein since a date to be determined by an inter- 
national commission in charge. On the conclusion of 
the voting the commission will make a recommenda- 
tion to the allied and associated powers as to the 
frontier of Germany in Upper Silesia in which "regard 
will be paid to the wishes of the inhabitants as shown 
by the vote, and to the geographic and economic 
conditions of the locality." 

Article 91. German nationals habitually resident in 
territories recognized as forming part of Poland will 
acquire Polish nationality ipso facto and will lose 
their German nationality, with the exception of those 
or their descendants who became resident in the ter- 
ritories after January 1, 1908, who require special 
authorization from the Polish State to become Polish 
nationals. Within two years Germans thus becoming 
Poles, as well as Poles resident in Germany who are 
German nationals, over 18 years of age, may opt for 
the other nationality, respectively. 

Persons thus exercising the right to opt "may" 
within the succeeding 12 months transfer their place 
of residence to the State for which they have opted. 
Each will be entitled to retain his immovable property 
in the territory of the other and freely to carry with 
him his movable property. 

Within the same period Poles in foreign countries, 
who are German nationals, will be entitled, in the 
absence of restrictions in the foreign land, to acquire 
Polish nationality by complying with the requirements 
laid down by the Polish State. 

Article 92. Poland will assume a portion of the 
Prussian and German debt attributable to the terri- 
tory on the basis of the ratio between the average for 
the years 1911, 1912, and 1913 of such revenues of 
ceded territory and the average for the same years of 
revenues of the German Empire, with the excep- 
tion that there shall be excluded that portion arising 
from German and Prussian projects of colonization. 



Poland was extinguished by a final partition among 
Russia, Prussia, and Austria in 1795, confirmed by 
the Congress of Vienna in 1815. In the present treaty 
large parts of Austrian and Prussian Poland are to be 
returned to the reconstituted State. A settlement 
with respect to Russian Poland lies in the future. 

The provisions of this section are founded upon 
political rather than upon legal considerations, how- 
ever, a primary object being the erection of a strong 
buffer State between Germany and Russia, for, in 
spite of the wrongful and unlawful acts of Russia, 
Prussia, and Austria in the three partitions, their 
titles had become good in law by prescription. (1 
Oppenheim, pp. 309, 310.) 



Here again involuntary naturalization is resorted 
to with, however, a subsequent right to opt. (See 
comment opposite arts. 36 and 37.) It will be ob- 
served in this article that persons opting "may" 
transfer their residence within 12 months- 



See comment opposite article 39. 



INTERNATIONAL LAW AND THE TKEATY OF PEACE. 



29 



THE TREATY. 



THE LAW. 



Article 93. Poland agrees to embody in a treaty 
with the principal allied and associated powers such 
provisions as may be deemed necessary to the protec- 
tion of the inhabitants who differ from the majority 
in race, language, or religion. 



See comment opposite article 86. 



Section IX. East Prussia. 



Articles 94-98. Provision is made herein for a 
plebiscite by the inhabitants to indicate their choice 
as between remaining a part of Germany or becoming 
incorporated into Poland under the same procedure 
and conditions previously set out in articles 87 and 88 
and the annex thereto. 



It does not appear that any right of option is given 
to the minority. 



Section X. Memel. 



Article 99. Germany renounces in favor of the prin- 
cipal allied and associated powers all rights and title 
over Memel and undertakes to accept in advance any 
disposition to be made of same. 



Articles 100, 102. Germany renounces in favor of 
the. principal allied and associated powers territory 
within certain boundaries on the Baltic within which 
the "Free city of Danzig" is to be created, "under 
the protection of the league of nations." 

Article 103. A constitution for the free city of 
Danzig will be drawn up by representatives of the 
free city and a high commission appointed by the 
league of nations. 

Article 104. The principal allied and associated 

fiowers undertake to negotiate a treaty between Po- 
and and the free city of Danzig which will insure 
reciprocal economic privileges, insure Poland control 
of the Vistula and of the whole system of railways 
within the free city, with the exception of street rad- 
ways, insure Poland the right to develop waterways, 
docks, etc., and which will provide that Poland shall 
conduct the foreign relations of the free city as well as 
undertake the diplomatic protection of its citizens 
abroad. 



Article 105. German nationals habitually resident 
in the territory of the free city of Danzig "will ipso 
facto lose their German nationality" on the coming 
into force of the treaty "in order to become nationals 
of the free city of Danzig." 

Article 106. Within two years German nationals 
over 18 years of age may opt for German nationality, 
though those opting "must" transfer their residence 
to Germany within the ensuing 12 months. 

Article 107. All property situated within the free 
city of Danzig belonging to the German Empire or to 
any German State shall pass to the principal allied 
and associated powers for transfer to the free city of 
Danzig or to the Polish state, as they may consider 
equitable. 



This renunciation of sovereignty is made in favor of 
the principal allied and associated powers, by which 
the United States becomes possessed of an undivided 
one-fifth interest hi the territory. The right to acquire 
territory is incident to and inferable from article 1, 
section 8, United States Constitution, but the dispo- 
sition of territory thus acquired by the United States 
is hi the sole power of Congress. (Art. P7, sec. 3, 
U. S. Const.) The power to dispose of such territory 
is a legislative one and can not be delegated. 

Ibid. 



Such a treaty as contemplated between Poland and 
the free city of Danzig would involve the transfer of the 
sovereignty over the so-called free city to Poland, in 
view of the proposal to give Poland control of foreign 
affairs of the free city; for that control is the. test of 
sovereignty. 

As cited, supra, it involves for the United States a 
constitutional question, being alienation of territory, 
and would require an act of Congress in addition to 
ratification of the present treaty. 

It is interesting to study in connection with this 
project the erection of the free city of Cracow by the 
congress of Vienna in 1815, under the protection of 
Russia, Prussia, and Austria, and the annexation of 
that so-called free city by Austria in 1848. (Nys. 1, 
pp. 383 r 385.) 

It will be observed that German nationals thus 
losing German nationality do not at that instant ac- 
quire any other, as in the preceding instance cited; 
until they become nationals of the free city they are 
without any nationality, or what the Germans term 
staatlos or heimatlos. 

See comment opposite article 91. 



As the United States would possess an undivided 
one-fifth interest, it would require an act of Congress 
to alienate that interest. (Vide supra, opposite arts. 
99 and 104.) 



30 



INTERNATIONAL. LAW AND THE TREATY OF PEACE. 



THE TREATY. 



THE LAW. 



Article 108. The proportion of public debt to be 
assumed by the free city of Danzig is to be calculated 
on the ratio indicated for Poland in article 92, without 
the exception therein indicated. 

Section XH. Schleswig. 



Ratio is set out in article 254 of the treaty. 



Article 109. Provision is made in these articles for 
a plebiscite within certain described territory by which 
the inhabitants may indicate their desire for incor- 
poration with Denmark, the right to vote being given 
to all persons, without distinction of sex, who have 
completed their twentieth year and who were born in 
the zone in which the plebiscite is taken or have been 
domisciled there since a date before January 1, 1900, 
or had been expelled by Germany. 



Article 110. Germany renounces definitely in favor 
of the principal allied and associated powers all rights 
of sovereignty over territories situated to the north 
of a frontier line fixed by the allied and associated 

Eowers, who "will hand over the said territories to 
•enmark." 

Article 112. "All the inhabitants of the territory 
which is returned to Denmark will acquire Danish 
nationality ipso facto and will lose their German na- 
tionality," with the exception that persons who had 
become habitually resident in tins territory after Octo- 
ber 1, 1918, can become Danish nationals only with 
permission of the Danish Government. 

Article 113. Within two years any person over 18 
years of age, born in the territory, not habitually 
resident in this region, may opt for Danish nation- 
ality, and any person over 18 years of age habitually 
resident in the region may opt for German nationality. 
Those opting must transfer their place of residence 
within the ensuing 12 months. They will be entitled 
to retain their immovable property and freely to carry 
their movable property with them. 

Article 114. The proportion of public debt to be 
assumed by Denmark with respect to territory re- 
stored will be calculated on the ratio indicated in 
the case of the free city of Danzig. (See article 108.) 



Denmark was despoiled of Schleswig by Prussia and 
Austria in 1864. Two years later Prussia became the 
sole possessor in war with Austria, which left Prussia 
supreme in the German political system. Schleswig 
is Denmark's Alsace-Lorraine, and the treaty properly 
attempts to undo the wrong suffered by the Scandina- 
vian State. 

It may be remarked, however, that Denmark was 
not officially consulted in the arrangements made by 
the allied and associated powers. 

See comment opposite articles 99, 104, and 107. 



See comment opposite article 36. 



See comment opposite article 37. 



By the treaty of October 30, 1864, by which Den- 
mark renounced all rights over the three duchies of 
Lauenburg, Holstein, and Schleswig in favor of the 
Emperor of Austria and the King of Prussia, these 
duchies assumed their portion of the Danish debt. 



Section XIII. Heligoland. 



Article 115. All fortifications on the islands of 
Heligoland and Dune shall be destroyed and shall 
not be reconstructed. 



This constitutes a restriction on German territorial 
supremacy, technically described as a negative servi- 
tude. So many, both negative and positive, and 
military and economic, have been imposed upon Ger- 
many by the present treaty that it is doubtful that 
Germany can be described as a fully sovereign state, 
at least during their continuance. 



Section XIV. Russia and Russian States. 



Article 116. Germany agrees to respect as inalien- 
able the independence of all territories which were 
part of the former Russian Empire, and, by reference 
to article 292, accepts definitely the abrogation of the 
Brest-Litovsk treaties and all other agreements with 
the Maximalist government. 

The allied and associated Governments reserve the 
rights of Russia to obtain restitution and reparation 
as against Germany. 

Article 117. Germany undertakes to recognize any 
treaties and agreements subsequently to be entered 
into by the allied and associated powers with Russia 
or Russian States. 



Arrangements entered into by two or more states 
with respect to another can not, of course, bind that 
other state. These are political and economic, rather 
than legal provisions. 



INTERNATIONAL LAW AND THE TREATY OP PEACE. 



31 



THE TREATY. 



THE LAW. 



PART TV. GERMAN RIGHTS AND INTERESTS OUTSIDE OF GERMANY. 



Article 118. In territory outside of her European 
frontiers as fixed by the treaty Germany renounces 
all rights, titles, and privileges whatever in or over 
territory formerly belonging to her or to her allies, 
and undertakes to recognize any measures taken with 
regard to same. 



In this general renunciation it is not clear in whose 
favor it is made. 



Section I. German Colonies. 



Article 119. Germany renounces in favor of the 
principal allied and associated powers all her rights 
and titles over her oversea possessions. 

Article 120. All movable and immovable property 
belonging to Germany or a German State shall pass 
to the Government exercising authority over such 
territories, in accordance with article. 257, which de- 
clares that no portion of the public debt shall be 
assumed, that no credit shall be given to Germany 
on the reparation account, and that such property 
taken over shall include the private property of the 
former German Emperor as well as that of other royal 
personages. 

Article 121. The provisions of Sections I and IV 
of Part X shall apply to such territories whatever the 
Government adopted. 

Section I of Part X provides for the enjoyment of 
economic privileges in Germany with respect to the 
produce and manufactures of such territories. 

Section IV provides for the confiscation of all private 
property of German nationals and its application 
toward the settlement of claims and indemnities; and 
for restitution or compensation with respect to all 
private property of nationals of the allied and asso- 
ciated Governments in German hands. 

Article 122. The Government exercising authority 
over such territories may make such provisions as it 
thinks fit with reference to repatriation of German 
nationals and to the conditions upon which German 
subjects of European origin shall or shall not be 
allowed to reside, hold property, trade, or exercise 
a profession. 

Article 123. The provisions of article 260 apply as 
to all agreements concluded with German nationals 
in such territories. Article 260 gives to the repara- 
tion commission power to cause Germany to dis- 
possess her nationals of any rights or interests they 
may have in any public utility or concession operating 
in Russia, China, Turkey, Austria, Hungary, and 
Bulgaria, or in any ceded territories and turn the 
same over to the reparation commission. Germany 
shall be responsible for indemnifying her nationals so 
dispossessed. 

Article 124. Germany undertakes to pay damage 
suffered by French nationals in the Cameroons at the 
hands of German civilians or military forces, in ac- 
cordance with an estimate to be presented by France. 

Article 125. Germany renounces all rights under the 
conventions of November 14, 1911, and September 28, 
1912, relating to equatorial Africa and undertakes to 
pay to the French Government, on its estimate, all 
deposits, credits, advances, etc., effected in virtue of 
these agreements in favor of Germany. 



See comment opposite articles 99, 104, and 107. 
See comment opposite article 39. 



See comment opposite article 74. 



In no treaty of peace imposed in modern times is to 
be found a provision comparable to this in severity 
toward individuals of the enemy country. Not only 
are these private persons to be despoiled of their prop- 
erty but they may be denied the right to hold prop- 
erty, to trade, or practice a profession, or they may be 
expelled en masse. All responsibility to assist in 
their repatriation is denied. 

See comment opposite article 74. 



See comment opposite article 63, subsection (1). 

The irresponsible acts of civilians of a belligerent 
government can not form the legal basis of a claim 
against his Government. With respect to such cases 
the exaction is disguised indemnity. 

By the conventions of November 14, 1911, France 
ceded to Germany 107,000 square miles of equatorial 
Africa, with a population of 1,000,000, as the price 
for German recognition of the French protectorate in 
Morocco. This area will thus come back to France, 
giving her a total of about 775,000 square miles and 
10,000,000 of negroes in this colony. 



32 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

Article 126. Germany undertakes to accept and 
observe the agreements made or to be made by the 
allied and associated powers or some of them with 
any other power with regard to the trade in arms and 
spirits, and to the matters dealt with in the general 
act of Berlin of February 26, 18S5, the general act of 
Brussels of July 2, 1890, and the conventions com- 
pleting or modifying the same. 



Article 127. The native inhabitants of the former 
German oversea possessions shall be entitled to the 
diplomatic protection of the Governments exercising 
authority over those territories. 



THE LAW. 

It is incorrect, says Oppenheim (Int. Law, vol. 1, 
p. 368, n.), to maintain that the law of nations has 
abolished slavery, but there is no doubt that the con- 
ventional law of nations has tried to abolish the slave 
trade. 

Three important general treaties have been con- 
cluded for that purpose during the nineteenth century 
since the Vienna congress, namely, (1) the treaty of 
London, 1841, between Great Britain, Austria, France, 
Prussia, and Russia; (2) the general act of the Congo 
conference of Berlin, 1885; and (3) the general act of 
the antislavery conference of Brussels, 1890. 

Of the principal civilized States ratifying this last 
international effort to abolish human slavery in 
Africa, France alone ratified, with so many reserva- 
tions as practically to have freed herself from its ob- 
ligations. 

(See reservations in act of ratification of general 
act of Congo conference by the United States Senate 
disclaiming approval of African colonies, etc., 2 Mal- 
loy, p. 1991.) 

Article 126 does not indicate what the allied and 
associated powers, or some of them, contemplate, 
whether a tightening or a relaxation of the obligations. 

This is confirmation of the passage of such territories 
under the sovereignty of the State to which they are 
allotted, since the exercise of diplomatic protection is 
only possible as an incident to the possession of ex- 
ternal sovereignty. 



Section II. China. 



Article 128. Germany renounces in favor of China 
all benefits and privileges resulting from the provi- 
sions of the final protocol signed at Peking on Septem- 
ber 7, 1901, and from all annexes, notes, and docu- 
ments supplementary thereto. She likewise renounces 
in favor of China any claim to indemnities accruing 
thereunder subsequent to March 14, 1917. 



Article 129. China need not grant Germany the ad- 
vantages and privileges enjoyed by the other high 
contracting parties under the treaties of August 29, 
1902, and September 27, 1905. 

Article 130. Germany cedes to China all the build- 
ings, wharves, pontoons, barracKs, forts, arms, vessels, 
and other public property which are situated or may 
be in the German concessions at Tientsin and Hankow, 
or elsewhere in Chinese territory, except as otherwise 
provided in Section VIII, relating to Shantung. Con- 
sular and diplomatic residences or offices and property 
in the legation quarter are also excepted. 

Article 131. Germany undertakes to restore to China 
within 12 months all astronomical instruments which 
her troops in 1900-1901 carried away from China and 
to defray all expenses incident thereto. 



It will be noted that with respect to China no decla- 
ration is made to the effect that all treaties and agree- 
ments are abrogated, as is done in other instances 
(infra, arts. 135, 138, 148), but there i$ here only a 
renunciation by Germany. 

Among the benefits and privileges of the protocol 
of September 7, 1901, was the commemorative arch 
erected in Peking to Baron von Ketteler at the demand 
of Germany. 

Germany also received economic privileges and an 
interest in the total Boxer indemnity of $328,000,000 
payable in 39 years. 



These concessions comprise comparatively small 
areas which have been wrung from China by all of the 
European powers in addition to their so-called "leased 
territory" in China. The titles in all instances are 
founded on force or threats of force, though the Ger- 
man concessions only are canceled. 

Plainly, China can not be bound by any provisions 
of the treaty unless and until she ratifies it. 

Nothing is said of restitution by any of the other 
high contracting parties, whose troops, with the Ger- 
mans, to quote the eminent English authority Spaight, 
indulged in "looting and robbery, naked and una- 
shamed"; nor do Great Britain and France offer to 
return from their museums any of the works of art 
taken from the Summer Palace at Peking in 1860, yet 
the grand allies compelled France to recognize the 
inviolability of property of rare artistic or scientific 
value in 1815 and to restore the same, even though it 
had passed to France by express treaty stipulation. 
(Final act, congress of Vienna, June 9, 1815.) 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



33 



THE TREATY. 

Article 132. Germany agrees to the abrogation of 
the least's under which the Hankow and Tientsin con- 
ns are held. 

China, restored to the full exercise of her sovereign rights in the 
above areas, declares her intention of opening them to international 
1 1 idi nee and trade. 



Article 133. Germany waives all claims arising out 
of the capture and condemnation of German ships in 
China and the liquidation, sequestration, or control of 
German property, rights, and interests in China since 
August 14, 1917. Such property may he retained and 
used to satisfy claims of Chinese nationals, any bal- 
ance to be turned over to the reparation commission. 

Article 134. Germany renounces in favor of Great 
Britain German Shite property in the British conces- 
sion at Shameen at Canton, and in favor of France 
and China conjointly the property in German schools 
in the French concession at Shanghai. 



THE LAW. 



There is an affectation of virtue in this act of restor- 
ing China "to the full exercise of her sovereign rights," 
hut how little ground there is for it can he seen from 
the words immediately following, which plainly put 
those sovereign rights in a strait-jacket; whatever 
is given is given to be immediately taken away. 

The law forbids the capture and condemnation of 
enemy ships found in the waters of a belligerent on 
the outbreak of war. They may be seized and used, 
hut only under an obligation to make restitution and 
compensation. (Report of American delegation to 
The Hague conference of 1907, The Hague Peace Con- 
ferences, 1 Scot I, pp. 556-568.) 

It would appear that China is the logical beneficiary 
of this German State property in both instances, being 
the sovereign of the territory in which it is situated. 



Section HI. Siam. 



Article 135. Germany recognizes that all treaties, 
conventions, and agreements between her and Siam, 
and all rights, title, and privileges derived therefrom, 
including all rights of extraterritorial jurisdiction, ter- 
minated as from Jul}' 22, 1917. 



Article 136. All German public property, with the 
exception of diplomatic and consular offices, pass ipso 
facto to Siam without compensation, and all private 
property of German nationals in Siam may be retained 
and applied to sa'tisfy Siamese claimants. 

Article 137. Germany waives all claims on account 
of seizure or condemnation of German sliips in Siamese 
waters, the liquidation of German property, or the in- 
ternment of German civilians. 
s. Due. 156, 66-1 3 



The effect of this article is to absolve Siam from re- 
sponsibility for any breaches of treaty obligations from 
the date mentioned. 

The outbreak of war does not abrogate all treaties; 
only those are annulled or suspended which are incom- 
patible with the state of war, such as treaties of com- 
merce and navigation. (5 Moore, pp. 376-377.) 

Those treaties contemplating a permanent arrange- 
ment of things and those entered into with a view to 
war, remain in force. (Scott, cases, 4128; Lawrence, 
4th ed., sec. 146.) 

As to the abrogation of the right of extraterritorial 
jurisdiction in Siam, enjoyed by Germany along with 
all other civilized States, it may be asked whether or 
not Germany alone is to be denied this protection for 
her nationals in Siam? Extraterritorial jurisdiction is 
instituted by civilized States through treaty in back- 
ward States in order that their nationals may not be 
subjected to legal systems that are incompatible with 
enlightened principles of justice. In many backward 
States their so-called legal systems authorize practices 
that are utterly barbarous. As their systems improve 
and approximate accepted standards the right of extra- 
territoriality is yielded, as in the recent case of the 
powers with respect to Japan. 

There is no principle in morals that can justify the 
denial of extraterritorial jurisdiction to Germany in 
such cases. 

.See comment opposite article 74. 



It appears that the allied and associated powers 
alone are to have the benefit of existing law instituted 
for the universal protection of property and persons. 



34 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



THE TREATY. 



THE LAW. 



Section IV. Liberia. 



Article 138. Germany renounces all rights and priv- 
ileges arising from the arrangements of 1911 and 1912 
regarding the nomination of a German receiver of 
customs. 



Article 139. Germany recognizes that all treaties 
between her and Liberia terminated from August 4, 
1917. 



Article 140. The property, rights, and interests of 
Germans in Liberia may be retained and used to satisfy 

i :i ..: ... .1 .: <-„ 



Liberian claimants. 



In 1912 a loan of $1,700,000 was ra.ised, secured by 
customs rubber tax and tax on native laborers shipped 
from Liberia, which was administered by an American 
general receiver and British, French, and German 
receivers. Military police were at the same time placed 
under control of American military officers. 

The treaty pretends to adopt as a principle that 
the outbreak of war automatically abrogates all treaties 
and agreements of every character (vide, comment op- 
posite art. 135), yet in the ease of China only a few 
specified conventions and agreements arc declared 
"renounced" by Germany. (See comment, infra, op- 
posite art. 156.) 

No specific provision appears to be made for the 
taking over of German public property in Liberia. 
(See comment opposite art. 74.) 



Section V. Morocco. 



Article 141. Germany renounces all rights and privi- 
leges under the general act of Algeciras of April 7, 1906, 
and by the Franco-German agreements of February 9, 
1909, 'and November 4, 1911. 



Article 142. Germany recognizes the French pro- 
tectorate in Morocco and renounces the regime of the 
capitulations therein; that is to say, extraterritorial 
jurisdiction. 

Article 143. The sherifian government shall have 
complete liberty in regulating the status of German 
nationals. 

Article 144. All private and public German prop- 
erty in Morocco, movable and immovable, may be 
taken over, the public property passing to the sherifian 
empire (France) and the private property to satisfy 
claimants. 

Article 145. Germany shall insure the transfer to a 
person named by France of all German shares in the 
State Bank of Morocco, Germany being responsible for 
indemnifying private owners thus dispossessed. 

Article 146. Moroccan goods entering Germany 
shall enjoy the privileges accorded French goods. 



France is thus left a free hand in Morocco and is 
restored to an even more favorable position than 
before Germany forced her participation through the 
Agidir and other incidents. Although the integrity 
of Morocco has been and is a subject of guarantee, its 
formal reduction to a French colony appears not far 
distant. This is forecasted in the article immediately 
following. 

See comment opposite article 135. 



See comment opposite article 122. 
See comment opposite article 74. 

Ibid. 



Section VI. Egypt. 



Article 147. Germany recognizes the British pro- 
tectorate over Egypt and renounces the regime of the 
capitulations. 



Article 148. All treaties, agreements, and contracts 
concluded by Germany with Egypt are abrogated. 

Article 149. Until Egyptian Taw is substituted by a 
reorganization of the judicial system, British consular 
tribunals will assume jurisdiction over German na- 
tionals and property. 



Until December 18, 1914, the date of the British 
proclamation of a protectorate, Turkey was the nomi- 
nal sovereign of Egypt, though constantly, since the 
British occupation in 1SS2, Great Britain had increased 
her control over the administration. Egypt, though a 
vassal State, was nevertheless considered a part- 
sovereign member of the family of nations, capable of 
issuing a proclamation of neutrality, sending and re- 
ceiving consuls as diplomatic agents and of holding 
joint sovereignty with Great Britain over Soudan. 
(1 Oppenhcim, p. 142.) This position of Egypt is 
clearly impeached by British action. 

See comment opposite articles 135 and 139. 

It will be observed not even this alternative was 
provided with respect to the position of German 
nationals in Siam. 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



35 



THE TREATY. 

Article 150. The Egyptian Government shall have 
complete liberty in regulating the status of German 
nationals in Egypt. 

Article 151. Germany consents to the abrogation of 
the decree issued by the Khedive on November 28, 
1904, relating to the public debt. 

Article 152. Germany consents to the transfer to 
Great Britain of the powers conferred on the Sultan of 
Turkey by the convention of October 29, 1888, con- 
cerning tin 1 Suez Canal. 

Article 153. All German public property in Egypt 
passes tn the Egyptian Government without payment. 

All private German property may be retained and 
applied toward satisfaction of claims. 

Article 154. Egyptian goods entering Germany shall 
enjoy the same privileges accorded British goods. 



THE LAW. 



See comment opposite article 122. 



See comment opposite article 74. 



Section VII. Turkey and Bulgaria. 



Article 155. Germany undertakes to recognize any 
arrangements made with Turkey and Bulgaria with 
reference to any lights, interests, and privileges what- 
ever of Germany or German nationals in those 
countries. 

Section VIII. Shantung 



Apparently such property is to be confiscated as in 

11 other instances. 



Article 156. Germany renounces in favor of Japan 
all her rights, title, and privileges, particularly those 
concerning the territory of Kiaochow, railways, mines, 
and submarine cables, which she acquired in virtue of 
the treaty concluded by her with China, on March G, 
1898, and of all other arrangements relative to the 
Province of Shantung. 

All German rights in the Tsingtao-Tsinanfu Rail- 
way, including its branch lines, together with its sub- 
sidiary property of all kinds, stations, shops, fixed 
and rolling stock, mines, plant and material for the 
exploitation of the mines, are and remain acquired 
by Japan, together with all rights and privileges at- 
taching thereto. 

The German State submarine cables from Tsingtao 
to Shanghai and from Tsingtao to Chefoo, with all 
the rights, privileges, and properties attaching thereto, 
are similarly acquired by Japan, free and clear of all 
charges and encumbrances. 



It will be observed, first, that with respect to China 
one of the allied ami associated powers, the doctrine 
that the supervention of a state of war automatically 
abrogates all treaties and agreements is not applied. 

On the contrary, the German lease on Kiaochow, 
together with privileges and concessions in Shantung, 
are held to be so far continuing as to be capable of 
transfer by Germany to Japan; and this in spite of 
the fact that by the terms of the treaty of March 
8, 1898, the privileges are nontransferable. 

Yet this treaty, wrung from China by Germany 
under a threat of force, was such an agreement as 
might properly be held to have been annulled by the 
entrance of China into the war. Treaties granting 
privileges, says Snow (Int. Law., p. 99), are abro- 
gated by war. 

It is true that in May, 1915, Japan wrung from 
China, under a threat of war, an agreement to abide by 
such disposition of Kiaochow and the privileges in 
Shantung as Japan and Germany might ultimately 
agree upon; yet the perfidy of the whole affair was 
such as to justify the reprobation of the civilized 
world. So lacking was the proceeding in morals that 
Japan preferred to abandon all reference to it as a 
basis of right in the treaty of peace and fell back 
on the doubtful legal ground appearing in the article. 

It is plain, however, that from August 14, 1917, 
the date China declared war, Germany's rights in 
Kiaochow lapsed. A renunciation by Germany to 
Japan of something not legally possessed is therefore 
a mere nullity. (See The Shantung Question, by 
Alpheus H. Snow, The Nation, Vol. CIX, Bo. 2829, 
Sept. 20, 1919.) 

All property belonging to the German Empire and 
the German States in China became liable to seizure 
as fair prize by China on August 14, 1917. 

As to the private property of German nationals, 
while it became liable to sequestration, it did not in 
law become liable to confiscation, although private 
German property in concessions which China might 



36 INTERNATIONAL LAW AND THE TREATY OF PEACE. 

THE TREATY. THE LAW. 

consider prejudicial to public policy might be can- 
celed, with or without compensation, as the case 
may be. 

No distinction appears to be made, however, in the 

attempt to grant all property to Japan, although the 

phraseology is characteristically Japanesque. 

Article 157. Movable and immovable property of This enemy State property being within the re- 

the German State, as well as all rights which Germany stored sovereign jurisdiction of China, it is for China 

might claim, are acquired by Japan free and clear of alone to say whether she will exercise her war right 

all charges and encumbrances. to confiscate it. , No third State can possibly acquire 

legal title to it save through China's previous seizure 
or approval. 
Article 158. Germany will hand over to Japan If an international court of arbitral justice could 

within three months all records, registers, archives, take cognizance of this provision, it could find no 
deeds, and documents of every kind and will give legal ground upon which to compel performance by 
particulars of all treaties, arrangements, or agreements Germany, for the reasons set out. (Supra, comment 
relating to rights, title and privileges, in Shantung. opposite, art. 156.) It is a pure arrangement of force 

in contempt of law. 

If a court of arbitral justice is to be set up by the 
league of nations, it is pertinent to ask whether the 
allied and associated powers would consent to a 
review of this transaction and to abide by an award 
in conformity with the law. 

PART V. MILITARY, NAVAL, AND AIR CLAUSES. 
Section I. Military Clauses. 

Chapter I. 

Articles 159-163. These clauses seek to reduce Ger- 
many's military forces to fixed limits. 

Chapter II. 

Articles 164-172. These clauses seek to establish 
equipment limits and exclude importations. They 
prohibit the manufacture of poisonous gases to Ger- 
many while demanding that Germany reveal to the 
principal allied and associated powers all formulae 
with respect to her manufacture of such gases and 
explosives. 

Chapter III. Recruiting and Military Training. 

Articles 173-179. These clauses prohibit universal It may be remarked that although Germany is for- 

military service in Germany and place, restrictions on bidden to have universal military service, most of the 

training calculated to insure the maxima in military allied and associated powers, including the United 

forces previously referred to. States, have adopted it in their military programs. 

Chapter IV. Fortifications. 

Article 180. This clause provides for destruction 
and disarmament of certain German fortresses. 

Section II. Naval Clauses. 

» 

Articles 181-197. These clauses fix the number and It will be observed that no obligation has been 

type of vessels Germany may have, forbid the building assumed by the allied and associated powers to forego 

of others, forbid the construction by Germany of sub- the building of submarines. On the contrary, the 

marines, provide for the sweeping up of mines, fix the submarine occupies a conspicuous place on all the 

naval personnel, limiting it to voluntary engagements new naval programs, 
for long periods, and regulate wireless. 

Section III. Air Clauses. 

Articles 198-202. These clauses forbid Germany to 
oosscss military or naval air forces, provide for the 
demobilization of existing forces, admit freedom of 
passage to allied and associated aircraft, and compel 
the surrender of all aircraft and parts thereof by 
Germany. v 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



37 



THE TREATY. 



Section IV. Interallied Commissions of Control. 



Articles 203-210. Interallied commissions of con- 
trol shall be appointed by the principal allied and 
associated powers to enforce all the provisions of the 
preceding three sections. They may establish them- 
selves at the seat of the German Government and must 
receive every facility in their missions. Their orders 
shall be carried out at Germany's expense and the 
upkeep and cost of such commissions shall be borne 
by Germany. 

Section V. General Articles. 

Article 211. Germany must within three months 
conform her laws to the preceding sections. 

PART VI. PRISONERS OF WAR AND GRAVES. 

Section I. Prisoners of War. 



Articles 214-216. These articles provide for repa- 
triation of prisoners of war as soon as possible after 
the peace, including German nationals who were ha- 
bitually resident in allied or associated countries. 



Article 217. Germany shall hear the whole cost of 
repatriation. 



Articles 218, 219. Prisoners of war and interned 
civilians awaiting disposal or undergoing sentence for 
offenses against discipline shall he repatriated despite 
that fact, but those awaiting disposal or under sen- 
tence for common-law crimes may be detained. 

Article 220. The allied and associated Governments 
reserve the right to make repatriation of German na- 
tionals conditional upon the immediate release of any 
allied or associated nationals in Germany. 

Article 221. Germany undertakes to give every 
facility to prisoners' commissions to facilitate inquiries 
concerning missing prisoners and to punish any Ger- 
man nationals who may have concealed the presence 
of any allied or associated prisoners or who have 
neglected to reveal the presence of such prisoners. 

Article 223. Germany undertakes to restore without 
delay all articles, money, securities, and documents 
belonging to nationals of allied and associated Gov- 
ernments which have been retained by Germany. 



By articles 3 and 18 of the armistice of November 
11, 1918, immediate repatriation was stipulated for 
all interned civilians, including persons under trial or 
convicted, and hostages, as well as inhabitants of oc- 
cupied territories, who were nationals of allied or as- 
sociated Governments. There was no reciprocity. 

This expense is usually included in the maintenance 
of prisoners' accounts and settled by the payment of 
any balance due after comparison of accounts. (See 
Art. XIII, treaty of Portsmouth, 1905; see art. 224, 
infra.) 

This, being reciprocally applicable, is in accordance 
with practice and the law. 



Article 224. Repayment of sums due for mainte- 
nance of prisoners is reciprocally waived. 

Section II. Graves. 



It will be observed that this obligation is not set 
out as reciprocal, yet it is a settled principle of the 
laws of war that the private property of prisoners of 
war remains their property and must be restored. 
(Spaight, pp. 279, 280; Ariga, Le Guerre russo- 
japonaise, p. Ill, n.) 

Is it conceivable that the allied and associated 
Governments wish to reserve the right to set aside as 
to themselves the binding force of such an enlightened 
rule of war law? Are no exceptions whatever to be 
made in the repudiation of the principle of invio- 
lability of private property? 



Article 225. The allied and associated Governments 
and Germany engage to respect and maintain graves 
of soldiers and sailors buried in their respective terri- 
tories. They agree to recognize any commission ap- 
pointed by an allied or associated Government for the 



It will be observed that allied and associated Gov- 
ernments alone are to be permitted to appoint rep- 
resentatives to identify, register, and care for the 
graves of their dead. The German Government is 
Senied these rights with respect to her dead. The 



38 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

purpose of identifying, registering, caring for, or erect- 
ing suitable monuments over said graves. 

Furthermore, they agree to afford, as far as require- 
ments of public health allow, every facility for giving 
effect to requests that the bodies of their soldiers and 
sailors may be transferred to their own country. 

Article 226. Graves of prisoners of war and civilians 
shall be maintained as provided in article 225, and 
each Government shall furnish the other with all in- 
formation with respect to same. 



THE LAW. 



world was entitled to expect some magnanimity anil 
generosity at least in dealing with a subject of such 
peculiar sanctity. 



PART VII. PENALTIES. 



Article 227. The allied and associated powers pub- 
licly arraign William II of Hohenzollern, formerly 
German Emperor, for a supreme offense against inter- 
national morality and the sanctity of treaties. 

A special tribunal will he constituted to try the 
accused, thereby assuring him the guaranties essential 
to the right of defense. It will be composed of five 
judges, one appointed by each of the following powers, 
namely, the United States of America, Great Britain, 
France, Italy, and Japan. 

In its decision the tribunal will be guided by the 
highest motives of international policy, with a view 
to vindicating the solemn obligations of international 
undertakings and the validity of international moral- 
ity. - It will be its duty to fix the punishment which 
it considers should be imposed. 



The allied and associated powers will address a 
request to the Government of the Netherlands for the 
surrender to them of the ex-Emperor in order that lie 
may be put on trial. 



However black the iniquity of the former German 
Emperor is under the moral law, his offenses are not 
crimes under any known system of jurisprudence, with 
this exception, that if it can be proved and it prob- 
ably can be — that the former Emperor is the author of 
any orders directing the violation of the laws of 
civilized warfare, he is triable before the military 
tribunal of any country suffering through the carrying 
out of such orders. In that respect his liability ap- 
pears to be unquestionable. He was a military per- 
sonage in addition to a ruler. 

But he is not arraigned on the charge of being the 
responsible author of violations of the laws of war; 
he is arraigned "for a supreme offense against inter- 
national morality and the sanctity of treaties." There 
is no such offense in any penal code known to man, 
ami it is the most elemental principle of criminal 
jurisprudence that no one can be punished for acts 
which, when committed, did not constitute a crime. 
We see this principle expressly embodied in our con- 
stitutional system in the prohibition against the enact- 
ment by Congress of an ex post facto law. 

The society of nations may by agreement establish 
for the future a system of international criminal law, 
including as crimes offenses against international mor- 
ality and the faith of treaties; they may institute a 
court and confer jurisdiction as to the future, but to 
set up a court and assume to create crimes out of 
past acts condemned by no system of law is to do 
violence to the basic principles of jurisprudence. 

That the allied and associated Governments can, 
as a precautionary measure of self-defense, place the 
former German Emperor in a position- where he can 
no longer menace their safety goes without saying. 

Such offenses as the former German Emperor is 
guilty of are essentially political in their character, the 
principal offense being the initiation of a war of aggres- 
sion against Europe. 

It is an elemental principle of the law of nations, 
embodied in municipal systems and in treaties uni- 
versally, that no state shall be bound, to deliver up 
political offenders who have fled to their territories. 
The State in which asylum has been found may de- 
liver up such fugitive, but it is wholly for (hat State 
to decide. 

There is this to be said with respect to the rights of 
the allied and associated Governments in relation to 
the ex-Emperor, that if his situation in Holland con- 
stitutes a menace to the allied and associated Govern- 
ments of sufficient gravity, they may invoke the right 
of self-preservation in eliminating that menace. And 
under cases of extreme necessity the vindication of 
this right may allowably involve what would ordinarily 
amount to an infraction of the law of nations. (Hall, 
268; 1 Westlake, 302.) 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



39 



THE TREATY. 



Article 228. Germany recognizes the right of the 
allied and associated Governments to bring before 
military tribunals persons accused of violations of the 
laws of war. Germany will hand over all persons who 

are specilied. 



Article 229. Persons guilty of criminal arts against 
the nationals of one of the ; Hied and associated powers 
will be brought before the military tribunals of that 
power. 

Persons guilty of criminal acts against the nation! Is 
of more than one of the allied and associated powers 
will be brought before military tribunals composed of 
members of the powers concerned. Tin' accused shall 
be entitled to have his own counsel. 

Article 230. The German Government will furnish 
all documents considered necessary to the discovery of 
offenders and the just appreciation of responsibility. 



THE LAW. 

In other words, assuming the necessity to exist, the 
allied and associated Governments might be justified 
even in the use of force to recover the person and 
render the ex-Emperor harmless. (Ilcrshey, pp. 
144-146; yet see Queen v. Dudley et al., 14 Q.B.D., 
273). 

The procedure here indicated appears fully to con- 
form to the leg. 1 requirements. There is no question 
of the jurisdiction of military tribunals over crimes 
against the laws of war. In all sentences of death, 
however, it would seem necessary that some reviewing 
authority, analogous to the commander in chief, exist. 
(Speight, pp. 461, 462.) 

This is one of the most wholesome of all the pro- 
visions in the treaty of peace. It is essentially calcu- 
lated to vindicate that great branch of the law of 
nations comprised within the lavs of war. It will 
give an added sanction of the highest value to that 
law. No belligerent in the future • ill care to embark 
upon a course of deliberate disregard of the laws of 
civilized warfare with such a deterrent example before 
its eves. 

While mixed military tribunals are unusual there 
appears no valid objection to their use in the cases 
indicated. 

The rights of the accused are adequately protected 
by the provision permitting the choosing of counsel. 



PART VIII. REPARATION. 
Section I. General Provisions. 



Articles 231-244, together with annexes 1-4. These 
articles, affirming Germany's responsibility for causing 

all the loss and damage suffered by allied and associ- 
ated Governments and their nationals, and instituting 
means, including a reparation commission, through 
which restitution and compensation are to be made, 
have been discussed in part. (Infra opposite article 63, 
together with Annex I, par. 1-10.) 

Article 232. Germany pledges complete restoration 
of Belgium, and, in addition, to make reimbursement 
of all sums borrowed by Belgium of the allied ami asso- 
ciated Governments up to November II, 1918, as a 
consequence of the violation of the treaty of neutrali- 
zation of 1839. 



It is to be noted (Annex II,) (11) that the reparation 
commission "shall not be bound by any particular 
code or rules of law" or rules of evidence. It must 
necessarily be freed from any such obligation if it is 
to carry out certain terms of the treaty. 



It may fairly be contended that the exaction of 
these conditions rests so far in a legal justification as 
to take them out of the category of indemnity. (See 
comment opposite art. 63.) Germany, being solemnly 
bound to respect the neutrality of Belgium, is properly 
denied the benefits that might accrue to a belligerent 
nol so hound and clothed with the rights of war in their 
full force. Hence it may be argued that all destruc- 
tion wrought, including that of the allied and associ- 
ated Governments in repelling Germany, all requisi- 
tions, contributions, and fines imposed, and all other 
acts prejudicial to Belgium must be repaired by Ger- 
many. 

No warrant exists, however, for the placing of the 
other allied and associated Governments in tne cate- 
gory with Belgium. Witn respect to them Germany 
was legally at war, and as a belligerent s le possessed 
ipso facto the right to enter upon and carry out 
destruction having a military object (see supra, oppo- 
site art. 63, par. 9); she possessed the war rights to 
levy requisitions, contributions, and fines (see supra, 
opposite art. 63, par. 10) . 



40 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 



THE LAW. 

Only where Germany exceeded the limits of these 
rights — and those instances were numberless — does a 
legal justification for the exaction of reparation exist. 
(Spaight, 462-463; II Oppenheim, pp. 319-321.) 

To determine the instances and degree of responsi- 
bility of Germany for violations of the laws of war 
would require inquiry into the facts — unquestionably 
a long and tedious process — and an award in each 
case. The alternative of agreement upon lump sums 
covering estimated unlawful damage and the like 
would not have been open to serious objection. 
Either of these courses would have tended to establish 
more firmly and promote respect for law. In ignoring 
these settled principles, defining war rights and 
duties as to persons and property, the allied and asso- 
ciated Governments wipe out the whole progressive 
development of the law and throw the world hack 
upon the doctrine of the unlimited right of the victoi 
obtaining through the Middle Ages. 

As the laws oi war permit of certain destruction of 
property, so they allow acts of violence against the 
persons of civilians under certain circumstances, yet 
no notice is taken of these distinctions in the provisions 
looking to the compensation of civilians of the allied 
and associated Governments hi all cases of injury and 
damage (see supra, opposite art. 63, par. 2). Civilians 
(noncombatants) have certain rights and duties arising 
in times of belligerency and their immunity from in- 
tentional injury is predicated upon the performance of 
those duties. Among those duties is abstention from 
all warlike acts. A civilian engaging in warlike con- 
duct is a war criminal. Many of such persons deserve 
the affectionate remembrance of their own countries, 
but their punishment is none the less the lawful right 
of the omeny. (Spaight, 335 et seq.) 

If it is proposed to enforce reparation in behalf of 
civilians of this class, described in law as unlawful 
belligerents, as well as in behalf of those suffering from 
acts in excess of the lawful exercise of power, the whole 
benign system of principles relating to combatants and 
noncombatants and denning their rights and duties is 
confounded. It does not constitute progress; it does 
constitute reaction. (See Spaight, Ch. Ill, pp. 3-1-72.) 



Annex III. 



(1) Germany recognizes the right of the allied and 
associated powers to replacement, ton for ton and 
class for class, of all merchant ships and fishing boats 
lost or damaged owing to the war. 

Germany will hand over all merchant ships, public 
and private, which are of 1,600 tons and upward; one- 
half of all ships between 1,000 and 1,600 tons; one- 
quarter of all steam trawlers and one-quarter of all 
• fishing boats. 



The right to capture and destroy an enemy's mer- 
chant ships, under certain limitations, including a gen- 
eral obligation to provide for tiie safety of passengers 
and crew, is a settled one under the laws of maritime 
warfare. (II Oppenheim, 24:2 245: II Westlake, 309- 

;!1 :-v 

These limitations include a .summons or warning as 
a condition precedent to any resort to force, a qualifi- 
cation constantly and deliberately violated by Ger- 
many in her submarine warfare. 

In such instances, it may he said generally, the 
destruction was unlawful and involves liability to 
make compensation. But no distinction is made, so 
far as replacement is concerned, with respect to those 
vessels lawfully warned and sunk during resistance or 
flight and those prizes destroyed at sea under lawful 
conditions. So far as the latter category is concerned, 
replacement can be viewed onty as indemnity; not as 
reparation. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



41 



THE TREATY. 



(8) Germany waives all claims against allied and 
associated Governments in respect of the detention, 
employment, loss or damage of any German ships. 



(9) Germany waives all claims as to vessels 
cargoes sunk by the allied and associated powers. 



THE LAW. 

As to replacement of fishing boats of the allied and 
associated Governments, the law recognizes coast- 
fishing vessels alone as exempted from capture and 
destruction,* and then only on condition of their inno- 
cent employment. It is well known that the fishing 
fleets of all the maritime States in the Great War were 
very largely used in mine planting and mine sweeping, 
under which circumstances no immunity could attach 
to them under the law. (Hall, Int. Law, 6th ed., pp. 
444-44.5; Pacquette Habana, 195, U. S., 677.) 

To enforce replacement in such cases must neces- 
sarily constitute indemnity, rather than reparation 
for wrong done. 

As to the private property in ships to be handed 
over, see comment opposite article 74. 

German vessels found in the territorial waters of 
most of the States at war with Germany were taken 
over by such States under a right to use them, though 
with an implied obligation to restore them at the 
peace and make compensation. They may not be 
confiscated. (See Report of American Delegation to 
Hague Conference, 1907, cited supra, opposite art. 
133.) So far, therefore, as the taking over of such 
vessels otherwise innocent is concerned, it must be 
considered as indemnity, and not as reparation. 

One of the results is a repudiation of the age long 
policy of the United States looking to the approxi- 
mation of the laws of maritime warfare to the laws 
of land warfare in the matter of immunity of private 
property. (7 Moore's Digest, pp. 460, 461, 462, 467, 
McKinley's annual message, Dec. 5, 1899; Roosevelt's 
annual message, Dec. 7, 1903.) 

A victorious belligerent may be justified in practice 
in declining to have the legality of its actions inquired 
into by the vanquished but such a course can not 
contribute to clarification and a firmer establishment 
of the law. 



Annex IV. 



(1), (2), (3), (4), (5). These paragraphs provide for 
the immediate delivery by Germany to the allied and 
associated powers, through the reparation commission, 
of animals, machinery, tools and like articles which 
have been seized, consumed, or destroyed by Germany 
in allied and associated countries, lists of such arti- 
cles desired to be filed by allied and associated Gov- 
ernments. Machinery, equipment, tools, and the like 
are to be demanded not in excess of 30 per cent of 
the quantity of such articles in any one establishment 
or undertaking. Services may be required toward 
repairing damage in lieu of physical restoration. 



As to animals for food or transport, they may 
rightfully be taken under the war right of requisition, 
a receipt being given. This receipt does not imply an 
obligation on the part of the giver to redeem it. 
(Holland, No. Ill; Bordwell, 107, 318.) Yet it is 
not unusual in practice that the giver has been com- 
pelled to redeem it if he is vanquished. That, is the 
extent to which the principle of inviolability of private, 
property is satisfied. (See supra, opposite art. 63, 
pars. (8) and (10).) 

As to machinery, equipment, tools, and the like, 
these may also be seized under requisition. They 
may be destroyed as a part of some military design 
to overcome the hostile army, under the authority of 
the laws of war, involving no liability to make com- 
pensation. Liability to make compensation appears 
to be recognized as to certain classes of private prop- 
erty taken over by an enemy force for use. (Juragua 
Iron Co. v. U. S., Sup. Ct., Feb. 23, 1909.) 

All ofjihese distinctions are ignored in the articles 
opposite. 



42 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 



THE LAW. 



Section II. Special Provisions. 



Articles 245-246. Those clauses provide for restitu- 
tion by Germany of trophies, works, of art, etc., car- 
ried away from France in 1870-7] ; the restitution of 
the original Koran of the Caliph Othman, taken from 
Medina by Turkish authorities, and other articles, and 
restitution to the University of Louvain of manu- 
scripts, incanabula, books, and other objects in num- 
ber and value corresponding to those destroyed. 

Under the provisions of Part VIII a reparation 
commission is instituted, to be composed of one dele- 
gate each of the United States, Great Britain, France, 
and Italy, with a delegate from Japan, Belgium, or 
the Serb-Croat-Slovene State sitting under specified 
conditions as the fifth member. 

To this commission is confided the power to enforce 
the various stipulations for reparation and indemnity. 
The commission may fix, as a tost installment (whether 
in gold, commodities, ships, securities, or otherwise), 
the equivalent of 20,000,000,000 gold marks, nearly 
$5,000,000,000. The findings of the commission as 
to the total sums due on account of damage shall lie 
concluded ami notified to Germany on or before May 
1, 1921. The commission shall thereafter consider the 
resources and capacity of Germany to pay. 

Germany further agrees to direct her economic re- 
sources to reparation relating to merchant shipping, 
to physical restoration, to coal and derivatives of coal, 
and to dyestuffs and other chemical products, to be 
credited to the reparation account. 

In addition to the total sum fixed, Germany shall 
make restitution in cash of cash taken away, seized, 
or sequestered, and shall make restutition of animals, 
objects of every nature, and securities taken aWay, 
seized, or sequestered. 

Germany agrees irrevocably to the possession and 
exercise by the commission of the power and au- 
thority set' out in the treaty, and Germany undertakes 
to puss, issue, and maintain in force any legislation, 
orders, and decrees that may be necessary to give 
complete effect to the treaty provisions. 

Tne commission may appoint all necessary officers, 
agents, and employee- required, and may delegate 
authority to such officers. All its proceedings shall 
be secret unless it should decide otherwise fur special 
reasons. Germany may present arguments as to her 
ability to pay. The commission snail not be bound 
by any particular system or rules of law, but shall be 
guided by justice, equity, ami good faith. 

The commission may determine that Germany shall 
cover by way ot guaranty by an equivalent issue of 
bonds any amount of proved claims not paid in gold, 
ships, or otherwise. It shall examine the German sys- 
tem of taxation with a view to seeing that it is fully as 
heavy proportionately as that of any power repre- 
sented on the commission. 

In order to facilitate the restoration of economic life 
in allied and associated, countries, Germany undertakes 
to issue forthwith 60,000,000,000 marks gold bearer 
bonds and to deliver forthwith a covering under- 
taking in writing to issue a further installment of 
40,000,000,000 marks gold bearer bonds of various 
dates and rates of interest largely in the control of 
the commission. 



This recalls the enforced restitution of works of art 
seized by Napoleon I in Italy upon the entrance into 
France of the grand allies in 1815. It is u lquestion- 
ably settled law that property of this character is in- 
violable. Yet the museums of Europe still hold quan- 
tities of precious works of the class of specially pro- 
tected property representing the spoils of war. 

In view of the wide latitude of control of German 
internal affairs placed in the hands of the commission, 
it is difficult to escape the conclusion that for an in- 
definite period at least Germany will cease to be a 
fully sovereign nation. Particularly is this indicated 
in the undertaking of Germany to pass, issue, and 
maintain any legislation, orders, and decrees which 
may be notified to her as necessary to give effect to 
the treaty. 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



43 



THE TREATY. 

In case of any voluntary default by Germany the 

allied and associated Governments may take any 
action they deem necessary, Germany agreeing not 
to regard any such measure as acts of war. When all 
the amounts due from Germany and her allies or the 
decisions of the commission have been discharged, 
the commission shall he dissolved. 



THE LAW. 



Part IX. FINANCIAL CLAUSES. 



Article 248. It is declared the cost of reparation to 
he a first charge ''upon all the assets and revenues of 
the German Empire and its constituent States." 

Article 249. Germany shall pay the total cost, of 
occupation by allied and associated armies, including 
the keep of men and beasts, Lodging, pay and allow- 
ances, and the cost of requisitions resorted to by the 
armies of occupation. 

Article 254. Where any payment is to be made on 
account of the assumption of a portion of the German 
debt chargeable to i-vt\a\ territory, it shall he made 
to the reparation commission and not to Germany. 

Article 256. Powers to which German territory is 
ceded shall acquire all property and possessions situ- 
ated therein belonging to the German Empire, to Ger- 
man States, and to the former emperor ami other 
royak personages. The acquiring State shall pay the 
equivalent of the value fixed to the reparation com- 
mission for the credit of Germany. 

Alsace-Lorraine and territories ceded to Belgium 
are made exceptions as to the requirement of payment. 

Article 257. Where German territory is confided to 
a mandatory no portion of the public debt will be 
assumed nor shall any payment he made or credit. 
given on account of public proper! \ taken over bj the 
mandatory. 

Article 258. Germany renounces all rights accorded 
to I er or her nationals by treaties, conventions, or 
agreements of whatsoever kind, to representation upon 
or participation in the control or administration of 
commissions. State hanks, agencies, or other financial 
or economic organizations of an international char- 
acter in any allied or associated country or in Austria, 
Hungary, Bulgaria, or Turkey. 

Article 259. Germany will deliver within one month 
to such authority as the principal allied and associated 
powers may designate Turkish gold deposited in the 
Reichsbank to secure the first issue of Turkish currency 
notes and other Turkish gold on deposit, as well as 
gold transferred by Austria-Hungary a-- collateral for 
loans. 

Germany confirms her renunciation of the Brest- 
Litovsk and Bucharest treaties and will deliver to 
Roumania or to the allied and associated Governments 
all monetary instruments, specie, securities, and goods 
received under these treaties. 

All such sums of money, securities, etc, will he dis- 
posed of by the principal allied and associated powers 
in a manner to he determined by them. 

Article 260. Germany, on demand of the reparation 
commission, will become possessed of any rights or 
interests of German nationals in public utilities or 
concessions operating in Russia, China, Turkey, Aus- 
tria, Hungary, and Bulgaria, or in any territories of 
these States, and transfer the same to the reparation 
commission. Germany shall be responsible for in- 



Sec comment on requisitions, opposite arts. 42S-432 



See comment opposite art. 39. 



See comment opposite art. 55. 



Thus are extinguished all of the once ambitious plans 
of the German Emperor in the southeast of Europe 
and in Asia Minor, including the projects of Berlin-to- 
the-Persian-Gulf. And thus all portentous obstacles 
in the road to India are cleared away. 

It is not indicated in whose favor the renunciation 
is made. 



It will he observed that China, one of the associated 
and allied powers, is placed in the category <>f enemy 
countries so far as contemplated projects of economic 
exploitation are concerned. 



44 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

demnifying her nationals thus dispossessed and shall- 
receive credit on the reparation account for the value 
of rights transferred. 

Article 261. Germany will transfer to the allied and 
associated powers any claims to payment or repay- 
ment by Austria, Hungary, Bulgaria, or Turkey. 



See comment opposite article 259 as to Bulgaria. 



PART X. ECONOMIC CLAUSES 

Section I. Commercial Relations. 

Chapter I. Customs Regulations. 

DUTIES AND RESTRICTIONS. 



Articles 264-270. These articles grant exceptional 
and uniform privileges to allied and associated Gov- 
ernments in the matter of duties and charges on their 
products and manufacture-; entering Germany. 

For a period of five years natural and manufac- 
tured products of Alsace-Lorraine shall be exempt 
from all customs duties. 

For a period of three years Polish products shall 
enjoy like exemption. A similar right is reserved for 
Luxemburg. 

Chapter II. Shipping 



It can not be doubted that these provisions go far 
toward limiting the sovereignty of Germany. 

In the absence of reciprocity these economic meas- 
ures are in the nature of indemnity. 



Article 271. As regards sea fishing, coasting trade 
and towage vessels of allied and associated powers 
shall enjoy most-favored-nation treatment in German 
territorial waters. 

Article 272. Germany agrees that all rights of in- 
spection and police shall, in the case of fisning boats 
of the allied powers, be exercised solely by snips of 
those powers in North Sea fisheries. 



This is clearly a restriction placed upon the internal 
sovereignty of Germany. 

By the international convention of May 6, 1882, for 
the regulation of the police of the fisheries of the 
North Sea, Great Britain, Belgium, Denmark, France, 
Germany, and Holland agreed upon certain reciprocal 
rights of visiting vessels of signatory States by special 
cruisers. Germany is thus ejected from these ar- 
rangements. 



Chapter III. Unfair Competition. 

Article 274. Germany undertakes to adopt legis- 
lative and administrative measures to repress expor- 
tation, manufacture, distribution, or sale in its territory 
of all goods bearing any marks, names, devices, or 
description calculated to convey a false indication of 
origin, type, or nature of such goods. 

Chapter IV. Treatment of Nationals of Allied and Associated Powers. 



Article 276. Germany undertakes: 

(a) Not to subject nationals of allied and associated 
powers to any prohibition in regard to the exercise of 
occupations, professions, trade, and industry not 
equally applicable to all aliens; 

(b) Not to subject them to any regulation or re- 
striction not applicable to nationals of the most- 
favored nation; 

(c) Not to subject their property, rights or interests 
to any charge or tax not imposed on its own nationals 
or their property. 

Article 278. Germany agrees to recognize any new 
nationality acquired by her nationals under the laws 
of allied and associated powers or by treaty, and to 
regard them as having severed their allegiance. 



Compare with action taken in articles 122, 143, 150. 



See comment opposite article 37. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



45 



THE TREATY. 



Article 279. Germany undertakes to approve the 
designation of consuls general, consuls, vice consuls, 
and consular agents by allied and associated powers 
and to admit them to exercise their functions in Ger- 
man ports and towns. 



THE LAW. 

The matter of receiving a particular foreign consul 
(through issuing an exequatur) or dismissing him 
(through revoking the exequatur) is a right to be 
exercized wholly at the pleasure of the receiving State, 
though exequaturs are rarely revoked without cause. 
It appears, however, that Germany is denied the 
'right to decline to receive a designated* consular officer 
even though he be persona non grata. 



Chapter V. General Articles. 

Article 280. Obligations imposed on Germany by 
Chapter I and by articles 271 and 272 of Chapter II, 
shall cease in five years unless continued by the council 
of the league of nations. 

The obligations under article 276 shall continue for 
five years and may be extended for five years. 

Article 281. If the German Government engages in 
international trade it shall not be deemed to have any 
rights, privileges, or immunities of sovereignty in 
respect thereof. 

Section II. Treaties 



This proposition is founded upon such elemental 
principles that it seems hardly necessary to have 
referred to it. 



Article 282. There are here designated 26 multi- 
lateral treaties, conventions, and agreements of an 
economic and technical character, which, it is de- 
clared, shall alone be applied as between Germany and 
those allied and associated powers parties thereto. 
They include conventions relating to international pro- 
tection of cables, birds, minors, to motor cars, railways, 
customs inspection, tolls, tonnage, measurement of 
vessels, collisions and salvage at sea, the metric sys- 
tem, pharmacopceial formulae for potent drugs, agri- 
culture, the establishment of a concert pitch; for the 
suppression of white phosphorus in the manufacture of 
matches, obscene literature, white slavery and phyl- 
loxera; and relating to other subjects. 

Articles 283-285. Further international treaties are 
designated herein which are to come into force condi- 
tionally, including the postal, telegraphic, and radio- 
telegraphic conventions. 

Article 286. The conventions of 1883 and June 2, 
1911, for the protection of industrial property; of 
Berne, 1886, for the protection of literary and artistic 
work; and of 1908 and 1914, relating to the same sub- 
jects, are revived, subject to exceptions and restric- 
tions contained in the treaty. 



The recital of international agreements of general 
concern set out as surviving the war and binding Ger- 
many, looks to article 24 of Part I (the covenant of the 
league of nations) of the treaty, where it is declared 
all international bureaux shall be placed under the 
direction of the league. 

Some idea of the magnitude of the proposed league's 
labors in fields other than those political may be ob- 
tained from this article. 

To what extent these conventions would be ener- 
gized with a resultant conflict with internal authority 
in the respective States is a matter of opinion. It can 
not be doubted, however, that each would occupy a 
separate department, under a separate head, with its 
corps of experts and agents. 



By paragraph 15 of Annex I, Section IV, article 297, 
the industrial, literary, and artistic property of German 
nationals within the territories of allied and associated 
Governments and ceded German territories is denied 
the protection of the conventions mentioned in article 
286 and is declared confiscable. 

These treaties were made with the object of the per- 
manent protection of these classes of private property 
and can not be considered as abrogated by the super- 
vention of war, although their operation between 
signatories was necessarily suspended. (5 Moore, 376- 
377.) At the times of negotiation of the treaties it was 
fully realized that private property of all kinds was 
under the protection of the law during war and that 
must be considered as assumed in the indefinite dura- 
tion agreed on as to the continuance of such treaties. 
(See 3 Malloy, Treaties, etc., art. 17£, p. 375.) 

The action of the allied and associated Governments 
in respect of Germany is plainly, therefore, a violation 
of the treaty. 

What, it may be asked, is the status of he dozent 
other highly important Hague conventions, including 
the whole code of the law of land warfare? All except 
that for the pacific settlement of international dis- 
putes appear to be discarded. (See comment opposite 
art. 13.) 



46 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



THE TREATY. 

Article 287. The convention of The Hague of July 
17, 1905, relating to civil procedure is revived, though 
not applicable to France, Portugal, and Roumania. 

Article 288. Special rights and privileges granted to 
Germany by the treaty of December 2, 1899, in Samoa 
shall be considered terminated as of August 4, 1914. 



Article 289. Each allied and associated power shall 
notify to Germany the bilateral treaties or conventions 
it wishes to revive with Germany. 



Treaty and treaty provisions in conflict with the 
treaty of peace shall not be revived. 

All bilateral treaties not notified as revived within 
six months shall remain abrogated. 

The above provisions shall apply even as between 
an allied and associated power that was not at war 
with Germany. 



THE LAW. 



This was the tripartite treaty between the United 
States, Great Britain, and Germany, relieving the 
United States from an entangling and vexatious joint 
control of the Samoan Islands and dividing them 
between the three powers. Germany received Upolu, 
Savaii, and all other islands west of longitude 171 
west of Greenwich. (See Introduction to C. K. Davis, 
International Law.) 

Reciprocal privileges of trade were granted. (Com- 
pare this article as to date of termination of Ger- 
many's right with art. 156.) 

As to the effect of the outbreak of war on treaties, 
there is a lack of agreement among the authorities as 
to whether certain classes of treaties are merely sus- 
pended or annulled so as to require renegotiation. 

This much is certain: 

(a) Dispositive treaties, setting up a permanent 
condition of things, such as those of cession, boundary, 
independence, neutrality, and the like, are unaffected. 
(Soc. for Prop, of Gospel v. New Haven, 8 Wheat.; 
464, 494; Scott, Cases. 428.) 

(b) Law-making treaties to which third powers are 
parties, such as The Hague, 1S99 and 1907, Postal 
Union, Industrial Property, and the like, remain in 
force, though suspended in operation as between 
belligerent signatories. (Hershey, Essentials of Put). 
Int. Law, p. 361.) 

(c) Conventions entered into with a view to hos- 
tilities become operative. 

(d) Political treaties, such as alliance, arc abro- 
gated. 

(e) Treaties of commerce, navigation, etc., may be 
treated as annulled or suspended or continuing at 
the will of the belligerents, signified in the treaty of 
peace. (5 Moore, .376, 377.) 

The United States maintained in 1898 that the last- 
mentioned class of treaties was merely suspended, 
but yielded to Spain's insistence that they be con- 
sidered abrogated, in accordance with the Spanish 
decree of April 2.3, 1S9S. 

In the present treaty Germany has nothing to say; 
it is for the allied and associated Governments alone 
to revive or abrogate any or all of its bilateral treaties 
with Germany. 

Thus the rule of law is left even more in doubt than 
before. 



Uruguay, Ecuador, and Bolivia, who are allied 
and associated powers, did not declare war on Ger- 
many, but merely severed diplomatic relations. To 
deal with them as belligerents with respect to their 
treaty relations is most unusual. The situation might 
have been met with more consistency by a declara- 
tion that Germany agreed to a revision of the treaties 
in accordance with their wishes and the requirements 
of the treaty of peace. 

Yet the conclusion of a treaty of peace with Ger- 
many on the part of these three States which have 
not been at war with Germany is even more re- 
markable. 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



47 



THE TREATY. 

Article 290. Germany recognizes that all treaties, 
agreements, etc., concluded with Austria, Hungary, 
Bulgaria, or Turkey since August 1, 1914, are abro- 
gated. 

Article 291. Germany undertakes to secure to allied 
and associated Governments and nationals all privi- 
leges granted to Austria, Hungary, Bulgaria, or Tur- 
key or their nationals so long as such privileges are 
enjoyed by the latter. 

Article 292. Germany recognizes that all treaties 
and agreements concluded with Russia or with Rou- 
mania are abrogated. 

Article 293. Any concession, privilege, or favor 
which any allied or associated power, Russia, or Rus- 
sian State 1 as been forced to grant Germany or a 
German national since August 1, 1914, by reason of 
military occupation or otherwise, is annulled. No 
claims shall result from this annulment. 

Article 294. Germany undertakes to grant to allied 
and associated powers and their nationals the benefit 
ipso facto of rights and advantages of any kind granted 
to neutrals in the war, so long as such rights remain 
in force. 

Article 295. Those of the high contracting parties 
who have not yet signed and ratified the opium con- 
vention of January 23, 1912, agree, to bring the con- 
vention into force within 12 mouths. Ratification of 
the present treaty shall be considered ratification of 
the opium convention. 

Section III 



THE LAW. 



See comment opposite article 12S. 



Through this provision will be revealed the price, 
if any, paid by Germany for the neutrality oi any 
European State. The acquisition of such rights and 
privileges, if any exist, can hardly be justified as repa- 
ration. 



Article 296. This section, dealing with debts due to 
and from the respective nationals of allied and asso- 
ciated Governments and Germany, has been referred 
to in article 74, supra. 

Section IV. Property rights and interests 



See comment opposite article 74. 



Article 297. This section, declaring the purpose of 
universal retention of all private German property in 
the hands of allied and associated Governments and 
elsewhere, while committing Germany to restitution 
and compensation in the matter of private property 
of allied and associated nationals, has been referred 
to in article 74, supra. 

Section V. Contracts, prescriptions, judgments. 



See comment opposite article 74. 



Article 299. Contracts between enemies shall be 
considered dissolved, except in respect of a. debt aris- 
ing out of an act done or money paid thereunder. 
Other exceptions are indicated. 

The United States, Brazd, and Japan are excepted 
from the operation of this article. 



Article 300. This deals with periods of prescription 
or limitation of right of action as to contracts excepted 
from the general policy of dissolution. 



The United States Supreme Court has repeatedly 
held that war does not dissolve or annul contracts 
entered into before the war; that they are merely 
suspended, and that a right of suit revives with the 
peace. (Williams v. Paine (1887), 169 U. S., 55). 
And so far as resident alien enemies are concerned, 
contracts with them are wholly unaffected. (Mc- 
Veigh v. U. S., 11 Wall., 259.) 

It therefore became impossible to commit the United 
States to a policy of dissolution of contracts as desired 
by the other allied and associated powers, without 
running counter to the law of the United States. 

The participation of Great Britain in this action is 
likewise in contravention of long-established British 
law and policy. (See 2 Westlake, p. 48; 2 Oppen- 
heim, 138.) 



48 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 

Article 301. As between enemies, no negotiable in- 
strument made before the war shall be deemed to 
have become invalid by reason of failure within the 
required time to present it for acceptance or payment 
or to give notice. 

Article 302. Judgments given by courts of allied 
and associated powers shall be recognized by Germany 
as final. Judgments of German courts shall not be 
thus recognized. 

Axxicx. — General Provisions. 

The following classes of contracts are excepted from 
dissolution without prejudice to the right of confisca- 
tion, referred to in article 297: 

(a) Those having as their object the transfer of 
real estate or personal property where the object had 
passed before the supervention of war. 

(J) Leases and agreements for leases of land and 
houses. 

(c) Contracts of mortgage, pledge, or lien. 

(d) Concessions concerning mines, quarries, or de- 
posits. 

(e) Contracts between individuals or companies and 
States, Provinces, or other similar juridical persons, 
and concessions granted by States, Provinces, or other 
juridical persons. 

These are excepted from dissolution without preju- 
dice to the right of seizure and retention provided for 
in article 297. 

Rules made by recognized exchanges for closure of 
enemy contracts are confirmed, including the closure 
of cotton "futures" on July 31, 1914, by the Liver- 
pool Cotton Association. 

No claims on the ground of sale of security shall be 
admitted if the creditor acts in good faith. 

If a person, before or during the war, became liable 
on a negotiable instrument in accordance with an 
undertaking of a person who subsequently became 
an enemy, the latter shall remain liable. 



THE LAW. 



It ajjpears, therefore (subsection (e), Annex 1), 
that at least some forms of private enemy debts are 
to be confiscated, and that the United States is a party 
to the policy along with the other allied and associated 
powers. Yet it is the settled law of the United State- 
that the}' may not be. 

By every nation, whatever its form oi government, the confisca- 
tion of debts has long been considered disreputable. (Wilson, .!.. 
in Ware v. Hylton, L796, 3 Dall., Km. 281.) 

The conqueror is denied the right t i confiscate private property. 
on the ground that it would violate "the modern usage of nations 
which has become law." .Marshall, C. J., U. S. r. Percheinan. 7 
Peters, 51.) 

(See also Planter's Bank v. Union Bank, 16 Wall., 
483; Williams v. Bruffy, 96 IT. S., L76, lsii-lSS.) 



Section VI. Mixed Arbitral Tribunal. 



Articles 304, 305. These articles, together with an 
annex, provide for the setting up of a mixed arbitral 
tribunal between each of the allied and associated 
powers, on the one hand, and Germany on the other, 
to decide all questions within their competence under 
Sections III, IV, V, and VII, relating to debts, prop- 
erty, rights and interests, contracts, prescriptions and 
judgments and industrial property. 

The mixed arbitral tribunals are primarily an ap- 
pellate body to which disputes arising in the "clearing 
offices" may be taken. 

Appeals may also be taken to these tribunals from 
judgments of German courts inconsistent with the 
terms of the treaty; not, however, from courts of 
allied and associated Governments. 

They may adopt such rule- of procedure as are in 
accordance with justice and equity. 

Section VII. Industrial Property 



These bodies do not deserve the appellation of 
"tribunals" in view of the limitations upon their 
powers to decide controversies in accordance with law. 
This inability is inherent in the settlement which is 
the negation of law. It will be observed each is em- 
powered to adopt its own rules of procedure instead 
of applying the system, together with the law, ready 
at hand in The Hague convention of 1907, establish- 
ing a court of arbitral justice, the achievement of the 
American delegation. 

The object of its establishment was to replace in- 
ternational settlements based on compromise and ex- 
pediency by settlements founded upon judicial deter- 
minations, to the end that the universal reign of law 
might be promoted. 



Articles 306-311. Conventions for the protection of 
industrial, literary, and artistic property mentioned 
in article 286 shall be reestablished between the high 
contracting parties. 

Nevertheless, all acts done, or to be done, in allied 
and associate:! countries in respect of such property 
of German nationals shall have full force and effect. 



The subject of the protection of industrial, literary, 
and artistic property has been referred to in the dis- 
cussion of article 29S and the annex thereto. 

The policy of allied and associated countries with 
respect to such German property, including patents, 
during the war. was, with the exception of that in 
liquidation, to permit its use under an obligation to 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



49 



THE TREATY. 

No claims on account of such acts shall be allowed. 

Any sums due for the use of such German property 
shall be treated as other Gorman property. 

The provisions of the article shall not apply to 
rights in industrial, literary, or artistic property which 
have been dealt with through liquidation of businesses 
or companies. 



pay at the peace a fair compensation. The patentees 
and other German owners will. not, however, receive 
such sums in view of the requirement of payment to 
the reparation commission. 



Section VIII. Social and State Insurance in Ceded Territories. 



Article 312. Germany undertakes to transfer to any 
power to which German territory is ceded and to any 
mandatory such portion of reserves accumulated by 
the Government or by private organizations as is 
attributable to the carrying on of social or State 
insurance. 

These sums musl be applied to the performance of 
the obligations arising under such insurances. 



PART X'. AERIAL NAVIGATION. 



Articles 313-320. Aircraft of allied and associated 
powers shall have full liberty of passage and landing 
over and in the territory and territorial waters of 
Germany, and shall enjoy the same privileges as 
German aircraft. 

All public aerodromes in Germany shall be open 
to aircraft of allied and associated powers. 

Any regulations applied by Germany to aircraft of 
allied and associated powers shall apply equally to 
German aircraft. 

As regards commercial air traffic, aircraft of allied 
and associated powers shall enjoy most-favored- 
nation treatment. 

Germany shall require all German aircraft flying 
over her territory to comply with all rules as to lights, 
signals, etc., laid down in the convention relative to 
aerial navigation concluded between allied and asso- 
ciated Governments. 

All of these obligations remain in force until Jan- 
uary 1, 1923, unless before that time Germany is 
admitted to the league of nations or shall lave been 
authorized to adhere to the convention relative to 
aerial navigation. 



The convention relative to aerial navigation con- 
cluded by the allied and associated powers recognizes 
at the outset that every State possesses complete and 
exclusive jurisdiction in the air space above its ter- 
ritory ami territorial waters, and it deals with the 
subject by analogy to customary control exercised 
over territorial waters, recognizing the right of inno- 
cent passage, making requirements for registry, na- 
tionality markings, logs, lights, signals, etc. 

By the terms of articles 313-32C German sover- 
eignty over her aerial space is set aside, at least, until 
January 1, 1923. 



PART XII. PORTS, WATERWAYS, AND RAILWAYS. 
Section 1. General Provisions. 



Articles 321-326. Germany undertakes to grant 
freedom of transit through her territories by rail, 
waterway, or canal, to persons, goods, vessels, car- 
riages, wagons, and mails coming from or going to 
any allied or associated power. They shall be sub- 
jected to no transit duty, delays, or restrictions, and 
shall be entitled to rational treatment. 

Goods in transit shall be exempt from customs and 
similar duties. 

No control shall be maintained over transmigration 
traffic beyond that necessary .to insure that passen- 
gers are bona fide in transit. 

No discrimination or preference on duties, charges, 
or prohibitions relating to importations or exporta- 
tions from her territories may be made. Nor may 
any surtax against the ports or vessels of any allied 
or associate! power be levied. 

The transport of perishable goods shall be promptly 
facilitated. 

S. Doc. 156, 60-1 i 



See comment opposite articles 264-270. 



50 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



THE TREATY. 

Seaports of allied and associated powers are entitled 
to all favors and reduced tariffs granted on German 
railways or navigable waterways for the benefit of 

German ports or any port of another power. 

The provisions of these articles are subject to re- 
vision by the council of the league of nations after five 
years. Failing such revision, no allied or associated 
power can claim the benefits of these articles without 
reciprocity after five years. 

Section II. Navigation. 

Chapter I. Freedom of Navigation". 



THE LAW. 



Article 327. Nationals of allied and associated 
powers and their vessels shall enjoy in all German 
ports ami inland water routes the same treatment as 
German nationals, vessels, and property, including 
transport of goods and passengers to and from ports 
and places in Germany. Equality of treatment shall 
extend to all facilities and charges. 

Should Germany extend preferential treatment to 
one allied or associated power it shall automatically 
extend to all. 

These privileges shall l>e subject to revision by the 
council of the league of nations after live years; failing 
such revision, their enjoyment shall depend upon 
reciprocity. 



The exclusive right of a State to control its coasts 
ing trade, including that in inland waters, is an 
essential incident to its territorial supremacy. The 
law of nations, therefore, recognizes the right of a 
State to exclude foreign vessels from such navigation 
and trade. (1 Oppenheim, pp. 257, 258.) This right 



was formerly held to apply even as between a state 
766.) 



and its colonies. (See Wheaton, 5th ed., pp. 765, 



The provisions of article 327 constitute a further 
invasion of German sovereignty during their 
continuance. 

As to the economic privileges, they are in the nature 
of indemnity. 



Chapter II. Free Zones in Ports. 

Articles 328-330. These articles provide for the Ibid. 

maintenance of free zones in German ports on August See article 65. 

1, 1914, and the granting of economic privileges in the 
same, as well as in others established by the treaty. 

The duration and conditions arc the same as men- 
tioned supra, article 327. 

Chapter III. Clauses Relating to the Elbe, the Oder, the Nieman and the Danube. 



(l) general clauses. 



Articles 331-338. The rivers mentioned in the title 
are declared international within certain boundaries, 
together with lateral canals and channels. 

The nationals, property, and flags of all powers shall 
be treated on a footing of perfect equality. Neverthe- 
less, German vessels shall not, for live years, carry 
passengers or goods between ports of allied or asso- 
ciated power,, without the authority of such power. 

Charges shall be based only on cost of maintenance 
and improvement of navigable conditions. 

The general convention of the allied and associated 
powers, relating to the waterways in question, will 
become the controlling act when approved by the 
league of nations. 

Article 339. Germany shall rvAc to allied and associ- 
ated powers within three months after ratification a 
proportion of tugs and vessels registered in ports of 
river systems referred to i .: article 331, in addition to 
those mentioned (Part VIII, Annex III), and including 
facilities to be determined by an arbitrator or arbitra- 
tors nominated by the United States, due regard being 
paid to the needs of the parties concerned. 

Indemnification of private owners shall be a matter 
for Germany to deal with. 



Compare with internationalization of Rhine and 
Scheldt by congress of Vienna, 1815. (Martens, 
N. R. II, pp. 370, 427: Wneaton's History, 282-284, 
552.) 

Previous to the congress of Vienna, the use of great 
international European rivers as well as international 
straits, was subject to tolls levied not only for purposes 
of maintenance of navigation, but for revenue as well. 
(1 Moore, sec. 134.) 

The principle may now be said to be settled, how T - 
ever, that navigation of rivers that traverse more 
countries than one is open to all states upon equal 
terms, and that tolls may not be levied for profit. 
(1 Westlake. Ch. VII.) 

See Part VIII, Annex III, following article 242, and 
comment, supra. 

It is difficult to explain upon what grounds this 
article is founded other than upon indemnity and the 
purpose of allied and associated powers to consolidate 
their economic advantages in Europe. 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



51 



THE TREATY. 



THE LAW. 



(2) SPECIAL CLAUSES RELATING TO THE ELBE. THE ODER, AND THE NIEMAN. 

Articles 340, 341. These articles place the Elbe and 
Oder under the administration of international com- 
missions and fixing representation upon the commis- 
sions. 

Articles 342-345. Upon request by a riparian State 
the league of nations will institute an international 
commission for the Nieman composed of the repre- 
sentative from each riparian State and three others. 

Such commissions will prepare projects for revision 
of systems in force in accordance with the general con- 
vention referred to in article 338. 

(3) SPECIAL CLAUSES RELATING TO THE DANUBE. 



Articles 346-353. The European commission of the 
Danube reassumes the powers it possessed before the 
war. Nevertheless, as a provisional measure, Ger- 
many shall not be representeed thereon. Where the 
competence of the old commission ceases an interna- 
tional commission, referred to in article 331, shall 
direct the administration, composed of two German . 
one representative of each other riparian State, and 
one representative of each uonriparian Male repre- 
sented on the old commission. 

The mandate given Austria-Hungary by the treaty 
of Berlin of 1878 to carry out works at the Iron Crates 
is abrogated. 

Germany shall make restitution, reparation, and 
indemnities for damages inflicted on the European 
commission of the Danube during the war. 



The European Danube commission was instituted 
by the treaty of Paris of L856, and reconstituted by the 
treaty of Berlin, 1878, and again in London in 1883, 
It was made independent of the territorial govern- 
ments its members, offices, and archives enjoying 
inviolability. Its competence extended from Ibraila 
downward to the mouth of the Danube. (I Twiss, 

see,. 150 152.) 

During the war the commission ceased to function 
owing to Germany's violation of the treaty. It was 
to all intents ami purpose- abolished with Germany 
substituted in its stead. 



Chapter IV. Clauses Relating to the Rhine and the Moselle. 



Articles 354-356. The convention of Mannheim of 
October 17, 1868, creating a central commission of the 
Rhine, shall become operative, subject to modifica- 
tion according with the general convention previously 
referred to. 

The commission shall consist of four representatives 
of German riparian States, four of France, one of whom 
shall be president, and two each of Holland, Switzer- 
land, Great Britain, Italy, and Belgium. Certain 
articles of the Mannheim convention are abrogated in 
the interest of free navigation. 

Article 357. Within three months from date of 
notice Germany shall cede to France tugs anil vessels 
registered in Rhine ports, from among those remain- 
ing after .satisfying previous articles, including in- 
stallations, berthing and. anchorage accommodations, 
or shares in German Rhine navigation companies, the 
amounts to be determined by an arbitrator or arbi- 
trators appointed by the United States. 

The same shall apply to cessions on the port of 
Rotterdam. 

Credit shall be allowed on the reparation account. 

Article 358. Subject to provisions in preceding 
articles, France shall have the exclusive right to power 
derived from German works on the river within the 
two extremes of the French frontier. A payment of 
one-half the value of power taken from Germany shall 
be made by France. 

Germany will construct no lateral canal on the right 
bank of the Rhine but recognize the right of France 
to fix the limits of necessary sites and occupy lands 
incident to the building and operation of wiers which 
France, subject to the central commission, may es- 
tabhsh. 



The Rhine became free as an international river by 
a declaration of the congress of Vienna, but the en- 
joyment of this status was long in question owing to 
a dispute over phraseology concerning the rights of 
regulation confided to coriparian powers. 

In the settlements attempted in the present treaty 
it is questionable whether the coriparian States art' 
recognized in the administration to the extent to 
which principle and custom entitle them. 



See Part VIII, Annex III, following 
See comment opposite article 339. 



article 242. 



These provisions are plainly in contravention of the 
understood rights of a coriparian State. 



52 INTERNATIONAL LAW AND THE TREATY OF PEACE. 

• 

THE TREATY. THE LAW. 

Germany shall make it her business to indemnify 
any proprietors burdened with such servitudes. 

Article 361. Germany shall construct in her territory 
the necessary portion of a deep-draft Rhine-Meuse 
Canal should Belgium desire same within 25 years. 

Article 362. Germany will not oppose the extension 
of the jurisdiction of the central Rhine commission to 
the Moselle, below the Franco-Luxemburg frontier, 
and to the Rhine above Basle to Lake Constance and 
to lateral canals. 

Chapter V. Clauses Giving the Czecho-Slovak State the Use of Northern Ports. 

Articles 363-364. Germany shall lease for 99 years to These clauses are reminiscent of the operations of 

the Czecho-Slovak State areas in Hamburg and Stettin, the European powers in China beginning in 1898. 
to be placed under the general regime of free zones. (See 5 Moore, 471 et seq., 534.) 

Delimitation of such areas, etc., shall be. under the 
control of a commission consisting of one German, one 
Czecho-Slovak, and one British representative. 

Section III. Railways. 

Chapter I. Clauses Relating to International Transport. 

Articles 365-369. Germany submits to a great This is a further extension of economic advantage, 

variety of regulations intended to extend the economic no reciprocity being granted, 
privileges of allied and associated Governments on 
German railways, the privileges to be revised within 
five years by a general convention which will bind 
Germany whether she adheres or not. 

Germany shall cooperate in establishing through 
ticket service required by any allied or associated 
Government to insure communication with each other, 
and shall accept trains and forward them with a speed 
equal to her best trains. 

No specif 1 regulations shfll be applied to such 
service by Germauy which will impede or delay it. 

Chapter II. Rolling Stock. 

Article 370. Germany will adapt her railway sys- 
tems to the physical requirements of allied and asso- 
ciated powerSj the rolling stock of the latter to enjoy 
equal treatment with the German, as regards move- 
ment, upkeep, and repairs. 

Chapter III. Cession of Railway Lines. 

Article 371. Railways in ceded German possessions 
shall be handed over in good condition and with com- 
plete rolling stock; as to lines having no rolling stock, 
commissions shall fix the quantity to be supplied. • 

Chapter IV. Provisions Relating to Certain Railway Lines. 

Articles 372-374, Provision is here made for the 
regulation of railway lines at frontiers; for the con- 
struction of new lines and the conditional denuncia- 
tion of the St. Gothard railway convention. 

Section IV. Disputes and Revision of Permanent Clauses. 

Articles 376-377. To the league of nations is confided 
settlement of disputes under these articles, together 
with a right to revise the same at any time. 

Section V. Special Provision. 

Article 379. Germany undertakes to adhere to any 
conventions relating to transit, waterways, ports, or 
railways concluded by the allied and associated 
powers, with the approval of the league of nations, 
within five years. 



INTERNATIONAL, LAW AND THE TREATY OF PEACE. 



53 



THE TREATY. 



THE LAW. 



Section VI. Clauses Relating to the Kiel Canal. 



Articles 380-386. The Kiel Canal is by these articles 
placed in the category of an international one, as to 
tolls, etc., though Germany's sovereignty over both 
banks is recognized to the extent of permitting its 
closure against States at war with Germany and 
limiting the rights of loading and unloading of goods 
and passengers to certain ports specified by Germany. 



PART XIII. LABOR. 



PART XIV. GUARANTIES. 



Section 1. Western Europe. 



Article 428. As a guaranty for tlie execution of the 
present treaty, the German territory situated to the 
west of the Rhine, together with the bridgeheads will 
be occupied by allied and associated troops for a 
period of 15 years from the coming into force of the 
present treaty. 

Article 429. If the conditions of the present treaty 
are faithfully carried out by Germany the occupation 
referred to in article 42.8 will be successively restricted 
as follows: 

(1) At the end of five years there will be evacuated 
the bridgehead of Cologne and territories north of a 
line running along the Ruhr, etc. 

(2) At tie end of 10 years there will be evacuated 
the bridgehead of Coblenz and territory north of a line 
to be drawn from the intersection between the frontiers 
of Belgium, Germany, and Holland, running about 
4 kilometers south of Aix-la-Chapelle, etc 

(3) At the end of 15 years there will be evacuated 
the bridgeheads of Mainz and Kehl and the remainder 
of German territory. 

If at that date the guarantees against unprovoked 
aggression by Germany arc not considered sufficient 
by the allied and associated Governments, the evacua- 
tion of occupying troops may be delayed to the extent 
regarded necessary to obtain the required guaranties. 

Article 430. If during occupation or after the expi- 
ration of 15 years the reparation commission finds that 
Germany refuses to observe the whole or part of her 
obligations under the treaty, the whole or part of the 
areas specified will be reoccupied immediately by the 
allied and associated power's. 

Article 431. If before the expiration of 15 years 
Germany complies with all the undertakings resulting 
from the treaty, the occupying forces will be withdrawn 
immediately. 

Article 432. All matters pertaining to occupation 
not provided for in the treaty shall be regulated by 
subsequent agreements which Germany undertakes 
to observe. 



The articles respecting guaranties can best be dealt 
with in their entirety. 

Many means have been resorted to in the past for 
compelling performance of the conditions of peace 
imposed. They have included placing the engage- 
ments under the aegis of religion, with the kissing of 
the cross and the administration of the oath (Bonfils, 
Paris, 1912, p. 536), the giving and receiving of 
hostages, as when Henry VIII gave to Francis I in 
1527, 2 archbishops, 11 bishops, 8 nobles, as well as 
13 towns; the giving of a pledge as when the diamonds 
of the crown of Poland were given to Prussia; guar- 
anties by third States, as that in the treaty of neutrali- 
zation of Belgium of April 19, 1839, relating to the 
separation of the latter from Holland. (Termination 
of War, etc., Phillipson, pp. 207, et seq.) Military 
occupation of a part of a State's territory has been the 
most usual mode during the last century where 
guaranties were required. 

Thus by the treaty of Paris, November 20, 1815, 
after the final overthrow of Napoleon, Great Britain, 
Austria, Prussia, and Russia stipulated for the occu- 
pation of positions along the French frontier with a 
force of 150,000 men, holding 20 fortresses. The 
maximum period of occupation was limited to 5 years, 
and might be terminated earlier. An indemnity of 
700,000,000 francs had been imposed, and in addition, 
France was required to pay 50,000,000 francs annually 
toward maintenance of the occupying forces. Civil 
and judicial administration, collection of taxes, cus- 
toms, and police, were to continue in the occupied 
area as before. Evacuation did no hinge on the pay- 
ment of the indemnity but primarily upon the restora- 
tion of internal tranquility and the suppression of 
revolutionary agitation which the grand allies feared 
might spread to their own countries. (A. Sorel, 
Histoire, Paris, 1875, Vol. II, pp. 355-356.) In fact 
the indemnity had not been paid at the time of 
evacuation. 

An instance bearing closer analogy to the present 
is found in the treaty of Frankfort of 1871, by which 
an indemnity of 5,000,000,000 francs was exacted, 
with payment demanded as follows: 500,000,000 in 30 
days; 1,000,000,000 within 1 year; 500,000,000 on 
May 1, 1872; 3,000,000,000 on March 2, 1874, with 
interest at 5 per cent. Meantime German troops were 
to remain in occupation of French territory at the 
expense of France, with provision for evacuation only 
as the installments were paid. The occupying forces 
were reduced successively from 500,000 men and 
150,000 horses to 150,000 men and 50,000 horses, to 



54 INTERNATIONAL LAW AND THE TREATY OF PEACE. 



THE TREATY. 



120,000 men and 40,000 horses, to 80,000 men and 
30,000 horses. The period of occupation was shortened 
by the rapidity with which France was enabled to 
discharge the indemnity. 

There are other instances of occupation as a guar- 
anty as in the Chino- Japanese War of 1895, where 
China, by the terms of the treaty of Shimonoseki was 
required to pay 200,000,000 taels and the Greco- 
Turkish War, where by the treaty of Constantinople 
of 1897 Greece was required to pay $20,000,000. 

The present treaty requires Germany to pay as 
"reparation" certain definite sums and others to be 
computed by a reparation commission upon inquiry 
into her capacity to pay. As has been pointed out, 
while some of these demands are designated as "rep- 
aration" the term "indemnity" is more fitting. 

Reparation connotes amends for legal wrongs; in- 
demnity is founded in the mere exercise of power in 
excess of reparation with the object of self-enrichment. 

It will be observed that reservations occur in the 
articles of guaranty whereby allied and associated 
troops may reoci upy German territory in any case of 
default withiD the fifteen years or afterwards, running 
into an indefinite future with the obligations imposed 
upon Germany. 

Practically this reservation is of little value without 
the league of nations or some such promise of per- 
manence to the concert of allied and associated 
Eowers. History attests that such coalitions are of 
rief duration, that the interests even of allies conflict 
too frequently and too vitally in the vicissitudes of 
even a lew years, to permit of expectation of perma- 
nency. Wherefore, and with the further object of re- 
cementing amicable relations as quickly as possible, 
practical statesmanship has been on the side of terms 
of peace that might be met as quickly as possible, 
with safety. 

In some respects the present treaty is more severe 
than the treaty of Frankfort of 1871, as, for example, 
in relation to occupation. It permits a greater degree 
of interference with the civil administration and au- 
thorizes the levying of requisitions upon the inhabit- 
ants, forbidden to Germany by Article VIII of the 
treaty of 1871. 



Section II. Eastern Europe. 



Article 433. As a guarantee of the provisions abro- 
gating the treaty of Brest-Litovsk and all other agree- 
ments with the Maximalist government of Russia, and 
to insure peace in the Baltic Provinces and Lithuania, 
all German troops at present in such territories shall 
return within Germany's frontiers as soon as the prin- 
cipal allied and associated governments think the 
moment suitable. These troops shall abstain from 
requisitions and shall in no way interfere with meas- 
ures for national defense adopted b\ the provisional 
governments of Esthonia, Lavia, and Lithuania. No 
other German troops shall be sent to these territories. 



Part XV. MISCELLANEOUS PROVISIONS. 



Article 434. Germany undertakes to recognize the 
full force of treaties of peace and additional conven- 
tions of the allied and associated powers with Ger- 
many's allies, and to recognize all disposition of terri- 
tories and the establishment of new States. 



INTERNATIONAL LAW AND THE TREATY OF PEACE. 



55 



THE TREATY. 

Article 435, with Annexes I and II. These, clauses, 
incorporating verbatim memoires of France and 
Switzerland, relate to a change in the economic and 
political situation of a portion of Savoy and the Gex 
district, established by the Congress of Vienna in 
1815. Switzerland is willing, apparently, to concede 
economic readjustments, provided the guaranties 
of neutrality given in the treaties of 1815, and par- 
ticularly by the declaration of November 20 of that 
year, are recognized by all of the allied and associated 
powers. 



Article 436. The high contracting parties declare 
and place on record that they have taken note of the 
treaty of July 17, 1918, between France and the 
Prince of Monaco, denning their relations. 

Article 438. The allied and associated powers 
except from the general policy of retention and 
liquidation of all German property, public and private, 
outside of Germany, the property of Christian religious 
missions of German societies and persons. Such 
property will be handed over to hoards of trustees 
appointed by the Governments concerned. 

Germany waives all claims relating to this subject. 

Article 439. Germany undertakes to put forward 
no pecuniary claim against any allied or associated 
power, including those not at war with her, on account 
of event which occurred at any time before the coming 
into force of the present treaty. 

Article 440. Germany accepts and recognizes as 
binding all decrees and orders of allied and associated 
powers concerning German ships and goods and the 
payment of costs made by their prize courts and under- 
takes to put forward no claims. 

The allied and associated powers, however, reserve 
the right to examine all decisions and orders of Ger- 
man prize courts, whether affecting the rights of na- 
tionals of allied and associated powers or neutral States. 
Germany undertakes to give effect to any recommen- 
dations made after examination of such cases. 



A part of Savoy was neutralized by the Congress of 
Vienna in 1815, in connection with the neutralization 
of Switzerland, and certain free zones were established 
in which there should he exemption from transit dues, 
in 1S60 France acquired Savoy from Sardinia, sub- 
ject (o these servitudes. 

It appears that Switzerland is willing to trade, sub- 
mitting to economic readjustments, if the United 
States can be induced to join in the guaranty of her 
neutrality. This guaranty does not extend to the 
independence of Switzerland, hut it does include the 
integrity and inviolability of Swiss territory. It is a 
collective guaranty on the part of Great Britain, 
Austria, France, Portugal, Prussia, Spain, and Russia. 

The allied and associated powers refer to this guar- 
anty in article too, as one "constituting international 
obligations for the maintenance of peace." This 
would appear to relate forward to article 21 of the 
league of nations covenant as "regional understand- 
ing," the validity of which is not affected by the 
covenant. 



This relaxation of the policy of universal con- 
fiscation of German property appears to he an after- 
thought, a concession to arguments of German pleni- 
potentiaries which could not in conscience be with- 
held. 



Thus all pecuniary claims which Germany might 
prefer against allied' or associated powers are swept 
into oblivion. 



In concluding peace, the signatory powers pledge 
themselves either impliedly or expressly to regard as 
settled not only all of their differences existing before 
the war and leading to it, hut also all such mutual 
claims as may have arisen during the war in connec- 
tion with the' conduct of hostilities. Although treaties 
of peace in the past have dealt with captures where 
no judgment of condemnation has been pronounced, 
none has ever contemplated a reopening of cases 
where a judicial determination has been arrived at. 
It was accepted that such determination, once pro- 
nounced, forever settled the property rights in question. 

The article in question is therefore most unusual, 
but may be justified to the extent that it contem- 
plates a reconsideration of the many cases involved 
in the unlawful destructions of merchantmen by 
German submarines, and particularly any dicta 
attempting to uphold them as valid. 

The peace conference might very wisely have taken 
up the whole subject of prize la-w in this connection, 
calling into life The Hague convention of 1907, estab- 
lishing an international court of prize and making 
provision for the clarification and approximation of 
the law to juster standards; and the United States 
might then 'have realized its age-long policy looking 
to '"the establishment of general immunity of private 



property as a principle of the law of maritime warfare. 
(7 Moore, 461.) 



c 



V ~ 



